Historical Notes
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OREGON OCCUPATIONAL SAFETY AND HEALTH STANDARDS Oregon Administrative Rules, Chapter 437 DIVISION 1 GENERAL ADMINISTRATIVE RULES Oregon Occupational Safety and Health Division (Oregon OSHA) Department of Consumer and Business Services Salem, Oregon 97301-3882 AO 2-2015 The Oregon Department of Consumer and Business Services adopted these rules pursuant to ORS 654.025(2). The Secretary of State Designated OAR Chapter 437 as the “Oregon Occupational Safety and Health Code.” Six general subject areas within this code are designated as “Divisions.” Division 1 General Administrative Rules Division 2 General Occupational Safety and Health Rules Division 3 Construction Division 4 Agriculture Division 5 Maritime Activities Division 7 Forest Activities Oregon Revised Statutes (ORS) 654 The Oregon Safe Employment Act (OSEAct) Oregon-initiated rules in this division of the Oregon Occupational Safety and Health Code are numbered in a uniform system developed by the Secretary of State. This system does not number the rules in sequence (001, 002, 003, etc.). Omitted numbers may be assigned to new rules at the time of their adoption. Oregon-initiated rules are arranged in the following Basic Codification Structure adopted by the Secretary of State for Oregon Administrative Rules (OAR): Chapter 437 Division 001 Rule 0055 Section (1) Subsection (a) Paragraphs (A)(i)(I) To obtain an order form or copies of these codes, address: Department of Consumer & Business Services Oregon Occupational Safety & Health Division (Oregon OSHA) 350 Winter St. NE, Room 430 Salem, OR 97301-3882 Or call the Oregon OSHA Resource Library at 503-378-3272 The rules referenced in this division are available for viewing in the Office of the Secretary of State, Administrative Rules and Office Document Section, Oregon State Archives Building, Salem, Oregon 97310, or the Central Office, Oregon Occupational Safety and Health Division of the Department of Consumer and Business Services, Room 430, 350 Winter St. NE Salem, OR 97301-3882. Please visit our web site at: www.orosha.org Oregon Administrative Rules Oregon Occupational Safety and Health Division GENERAL ADMINISTRATIVE RULES OAR 437, DIVISION 1 GENERAL ADMINISTRATIVE RULES ________________________________________________________________________ HISTORICAL NOTES: “Rules for the Administration of the Oregon Safe Employment Act” were first adopted as OAR 436, Division 46, by the Workers’ Compensation Board (later the Workers’ Compensation Department) by WCB Admin. Order 19-1974, filed 6/5/74, effective 7/1/74. Amended by WCB Admin. Order 33-1974, filed 9/5/74, effective 9/26/74. Amended by WCB Admin. Order Safety 8-1975, filed 8/5/75, effective 9/1/75. Amended by WCD Admin. Order Safety 5-1978, filed 6/22/78, effective 8/15/78. Amended by WCD Admin. Order Safety 7-1979, filed 8/20/79, effective 9/1/79. Amended by WCD Admin. Order Safety 4-1981, filed 5/22/81, effective 6/1/81. Amended by WCD Admin. Order Safety 6-1982, filed 6/28/82, effective 8/1/82. Amended by WCD Admin. Order Safety 12-1982, filed 8/13/82, effective 8/13/82. Amended by WCD Admin. Order Safety 3-1983, filed 1/31/83, effective 2/1/83. Amended by WCD Admin. Order Safety 9-1983 (temp), filed 11/15/83, effective 11/15/83. Amended by WCD Admin. Order Safety 2-1984 (perm), filed 3/2/84, effective 3/15/84. Amended by WCD Admin. Order Safety 12-1984, filed 9/20/84, effective 11/1/84. Amended by WCD Admin. Order Safety 9-1986, filed 10/7/86, effective 12/1/86. The 1987 Oregon Legislature established the Department of Insurance and Finance (DIF) effective July 1, 1987. The Accident Prevention Division (APD) became a division of DIF. Other divisions of WCD became the Workers’ Compensation Division of DIF. Amended by APD Admin. Order 6-1987, filed 12/23/87, effective 1/1/88. Amended by APD Admin. Order 5-1988, filed 5/16/88, effective 5/16/88. OAR 436, Division 46, Rules for the Administration of Oregon Safe Employment Act, was redesignated as OAR 437, Division 1, by APD Admin. Order 7-1988, filed 6/17/88. Its effective date remains 7/14/74. OAR 437, Division 10, Insurer/Self-Insured Employer Consultative Services, was redesignated as part of OAR 437, Division 1 (OAR 437-01-1005 through 1070), by APD Admin. Order 21-1988, filed 12/27/88, effective 12/27/88. Division 1 i Historical Notes GENERAL ADMINISTRATIVE RULES Oregon Administrative Rules Oregon Occupational Safety and Health Division In May of 1989, the title of OAR 437, Division 1, was redesignated from “Rules for the Administration of the Oregon Safe Employment Act” to “General Administrative Rules.” Amended by APD Admin. Order 7-1989 (temp), filed 5/1/89, effective 5/1/89. Amended by APD Admin. Order 10-1989 (perm), filed 7/7/89, effective 7/7/89. On October 1, 1989, the Accident Prevention Division of DIF was renamed the Oregon Occupational Safety and Health Division (OR-OSHA). Amended by OR-OSHA Admin. Order 3-1989, filed 12/1/89, effective 12/1/89. Amended by OR-OSHA Admin. Order 10-1990 (temp), filed 5/31/90, effective 5/31/90. Amended by OR-OSHA Admin. Order 24-1990 (perm), filed 10/10/90, effective 10/10/90. Amended by OR-OSHA Admin. Order 1-1991 (temp), filed 1/28/91, effective 1/28/91. Amended by OR-OSHA Admin. Order 3-1991, filed 2/25/91, effective 2/25/91. Amended by OR-OSHA Admin. Order 5-1991 (perm), filed 3/18/91, effective 3/18/91. Amended by OR-OSHA Admin. Order 8-1991, filed 4/25/91, effective 5/1/91. Amended by OR-OSHA Admin. Order 9-1991, filed 4/25/91, effective 4/25/91. Amended by OR-OSHA Admin. Order 10-1991, filed 4/25/91, effective 4/25/91. Amended by OR-OSHA Admin. Order 7-1992, filed 7/31/91, effective 10/1/92. OAR 437, Division 40, General Provisions and Division 136, General Occupational Health Regulations, (OAR 437-136-010(1) and (2)), were redesignated as part of Division 1. Division 40 and 136 were then repealed. Amended by OR-OSHA Admin. Order 6-1994, filed 9/30/94, effective 9/30/94. Amended by OR-OSHA Admin. Order 7-1995, filed 7/5/95, effective 7/5/95. Amended by OR-OSHA Admin. Order 9-1995, filed 11/29/95, effective 11/29/95. Amended by OR-OSHA Admin. Order 10-1995, filed 11/29/95, effective 11/29/95. Amended by OR-OSHA Admin. Order 2-1996, filed 6/13/96, effective 6/13/96. Amended by OR-OSHA Admin. Order 1-1997, filed 1/31/97, effective 2/1/97. Amended by OR-OSHA Admin. Order 10-1997, filed 12/31/97, effective 12/31/97. Amended by OR-OSHA Admin. Order 5-1998, filed 10/15/98, effective 10/15/98. Amended by OR-OSHA Admin. Order 7-1999, filed 7/15/99, effective 7/15/99. Historical Notes ii Division 1 Oregon Administrative Rules Oregon Occupational Safety and Health Division GENERAL ADMINISTRATIVE RULES Amended by OR-OSHA Admin. Order 11-1999, filed 10/20/99, effective 10/20/99 (temp). Amended by OR-OSHA Admin. Order 4-2000, filed 4/14/00, effective 4/15/00. Amended by OR-OSHA Admin. Order 11-2000, filed 12/12/00, effective 12/12/00. Amended by OR-OSHA Admin. Order 8-2001, filed 7/13/01, effective 7/13/01. Amended by OR-OSHA Admin. Order 11-2001, filed 9/14/01, effective 1/1/02. Amended by OR-OSHA Admin. Order 2-2002, filed 3/12/02, effective 3/12/02. Amended by OR-OSHA Admin. Order 7-2002, filed 11/15/02. effective 11/15/02. Amended by OR-OSHA Admin. Order 6-2003, filed 11/26/03, effective 11/26/03. Amended by OR-OSHA Admin. Order 6-2004, filed 12/30/04, effective 12/30/04. Amended by OR-OSHA Admin. Order 1-2006, filed 2/14/06, effective 2/14/06. Amended by OR-OSHA Admin. Order 7-2006, filed 9/6/06, effective 9/6/06. Amended by OR-OSHA Admin. Order 8-2006, filed 9/15/06, effective 9/15/06. Amended by OR-OSHA Admin. Order 5-2007, filed 9/5/07, effective 9/5/07 (temp). Amended by OR-OSHA Admin. Order 8-2007, filed 12/3/07, effective 12/3/07. Amended by OR-OSHA Admin. Order 10-2007, filed 12/3/07, effective 1/1/08. Amended by OR-OSHA Admin. Order 11-2007, filed 12/21/07, effective 1/1/08. Amended by OR-OSHA Admin. Order 1-2008, filed 2/22/08, effective 3/1/08 (perm). Amended by OR-OSHA Admin. Order 8-2008, filed 7/14/08, effective 7/14/08. Amended by OR-OSHA Admin. Order 9-2008, filed 9/19/08, effective 1/1/09. Amended by OR-OSHA Admin. Order 2-2009, filed 1/27/09, effective 2/3/09. Amended by OR-OSHA Admin. Order 10-2009, filed 10/5/09, effective 10/5/09. Amended by OR-OSHA Admin. Order 2-2011, filed 9/29/11, effective 10/1/11. Amended by OR-OSHA Admin. Order 2-2012, filed 5/11/12, effective 7/1/12. Amended by OR-OSHA Admin. Order 2-2015, filed 3/18/15, effective 1/1/16. Division 1 iii Historical Notes Oregon Administrative Rules Oregon Occupational Safety and Health Division iv Oregon Administrative Rules Oregon Occupational Safety and Health Division GENERAL ADMINISTRATIVE RULES TABLE OF CONTENTS General Information 437-001-0001 Model Rules of Procedure ........................................................................... 1 437-001-0002 Notice to Interested Persons of Rulemaking .............................................. 1 437-001-0005 Authority and Applicability of Rules ............................................................. 2 437-001-0010 Purpose and Scope of Rules ...................................................................... 3 437-001-0015 Definitions .................................................................................................... 3 437-001-0020 Authority to Administer .............................................................................. 14 437-001-0025 Liberal Construction .................................................................................. 14 437-001-0030 Use of Gender and Number ...................................................................... 14 437-001-0035 Occupational Safety and Health Rules ..................................................... 15 437-001-0045 Adoption, Amendment or Repeal of Rules ............................................... 15 437-001-0047 Voluntary Compliance Program, General ................................................. 16 437-001-0050 Enforcement Program, General ................................................................ 16 Inspections 437-001-0053 Preserving Physical Evidence at the Scene of an Accident ..................... 17 437-001-0055 Priority of Inspections ................................................................................ 18 437-001-0057 Scheduling Inspections ............................................................................. 19 437-001-0060 Advance Notice ......................................................................................... 27 437-001-0065 Right of Entry ............................................................................................. 27 437-001-0070 Inspection Warrants .................................................................................. 28 437-001-0075 Opening Conference ................................................................................. 28 437-001-0080 Inspection Without Employer or Employer Representative ...................... 29 437-001-0085 Employee Representation on Inspection Team ........................................ 30 437-001-0090 Inspection Procedures............................................................................... 30 Division 1 v Table of Contents GENERAL ADMINISTRATIVE RULES Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0096 Red Warning Notice .................................................................................. 31 437-001-0099 Closing Conference ................................................................................... 32 Violations and Penalties 437-001-0135 Evaluation of Probability to Establish Penalties ........................................ 34 437-001-0140 Evaluation of Severity to Establish Penalties ............................................ 35 437-001-0145 Penalty for Other than Serious or Serious Violation ................................. 35 437-001-0155 Determination of Penalty – Failure to Correct ........................................... 39 437-001-0160 Penalty Criteria – Repeat Violation ........................................................... 39 437-001-0165 Determination of Penalty – Repeat Violation ............................................ 41 437-001-0170 Determination of Penalty – Failure to Report an Occupational Fatality, Catastrophe, or Accident ....................................................................... 41 437-001-0171 Determination of Penalty – Failure to Register a Farm Labor Camp/Facility ......................................................................................... 42 437-001-0175 Determination of Penalty – Willful or Egregious Violation ........................ 42 437-001-0176 Determination of Penalty – Failure to Notify Employees of Advance Notice ..................................................................................... 42 437-001-0180 Determination of Penalty – Relating to Red Warning Notice .................... 42 437-001-0201 Determination of Penalty – Relating to Field Sanitation ........................... 43 437-001-0203 Determination of Penalty – Relating to Violations Which Have No Probability and Severity ......................................................................... 43 Citations and Corrections 437-001-0205 Citation and Notice of Penalty ................................................................... 44 437-001-0215 Employer Response to Citation and Notice of Penalty ............................. 45 437-001-0220 Payment of Penalties ................................................................................ 45 437-001-0225 Penalty for Falsification ............................................................................. 45 437-001-0230 Correction of Violation ............................................................................... 46 Table of Contents vi Division 1 Oregon Administrative Rules Oregon Occupational Safety and Health Division GENERAL ADMINISTRATIVE RULES 437-001-0231 Abatement Verification .............................................................................. 46 437-001-0235 Failure to Correct Violation ........................................................................ 47 437-001-0240 Extension of Correction Date – Application .............................................. 47 437-001-0245 Extension of Correction Date – Decision .................................................. 48 437-001-0250 Extension of Correction Date – Revocation .............................................. 49 437-001-0251 Extension of Correction Date – Hearing on the Application ..................... 49 437-001-0265 Amendment or Withdrawal of Citation ...................................................... 50 Requesting an Appeal and an Informal Conference 437-001-0255 Requesting an Appeal and an Informal Conference ................................. 51 437-001-0270 Discretion to Prevent a Manifest Injustice ................................................. 52 Posting 437-001-0275 Posting Requirements ............................................................................... 53 437-001-0280 Posting on Selected Multi-Employer Jobsites ........................................... 54 Complaints 437-001-0285 Form and Content of a Complaint ............................................................. 55 437-001-0290 Division Action on Complaints ................................................................... 55 437-001-0295 Discrimination Complaint........................................................................... 56 Variances 437-001-0400 Application for a Variance ......................................................................... 57 437-001-0405 Interim Order Relating to a Variance ......................................................... 58 437-001-0410 Administrative Action on Variance Application ......................................... 59 437-001-0411 Hearings for Variance Applications ........................................................... 60 437-001-0415 Criteria for Variance Approval ................................................................... 61 Division 1 vii Table of Contents GENERAL ADMINISTRATIVE RULES Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0420 Decision on Variance Request .................................................................. 61 437-001-0425 Employer’s Duty to Meet Variance Terms ................................................. 63 437-001-0430 Modification or Revocation of a Variance ................................................. 63 437-001-0435 Effect of a Variance Granted by the U.S. Secretary of Labor ................... 65 Consultative Services for Public and Private Sector Employers 437-001-0450 Voluntary Compliance Consultative Services ........................................... 67 437-001-0455 Application for Consultative Services ........................................................ 67 437-001-0460 Consultation ............................................................................................... 68 Recordkeeping and Reporting 437-001-0700 Recording Workplace Injuries and Illnesses ............................................. 69 Appendix A (Nonmandatory) to 437-001-0700, Age Related Hearing Loss ................... 87 Appendix B (Nonmandatory) to 437-001-0700, Hearing Loss Recordability Flowchart .................................................................................................................... 91 437-001-0704 Reporting Fatalities and Injuries to Oregon OSHA ................................... 93 437-001-0706 Recordkeeping for Health Care Assaults .................................................. 95 Appendix A to 437-001-0706, Instructions for Recording Health Care Assaults ............ 97 Appendix B to 437-001-0706, Safety of Health Care Employees ................................. 101 437-001-0740 Falsification or Failure to Keep and Post Records or Make Reports. ..... 107 437-001-0742 Recordkeeping Variances and Exceptions. ............................................ 107 General Provisions 437-001-0760 Rules for all Workplaces ......................................................................... 109 437-001-0765 Safety Committees and Safety Meetings ................................................ 112 Occupational Safety and Health Grant Program 437-001-0800 Application Procedures ........................................................................... 116 437-001-0805 Application Review .................................................................................. 116 437-001-0810 Grant Awards ........................................................................................... 117 Table of Contents viii Division 1 Oregon Administrative Rules Oregon Occupational Safety and Health Division GENERAL ADMINISTRATIVE RULES Rules for the Administration of Loss Prevention Activities by Insurers/ Self-Insured Employers – General 437-001-1005 Authority and Applicability of Rules ......................................................... 118 437-001-1010 Purpose and Scope ................................................................................. 118 437-001-1015 Definitions ................................................................................................ 118 437-001-1020 General Requirements ............................................................................ 119 Insurers’ Program 437-001-1025 Notification of Services ............................................................................ 121 437-001-1030 Requests for Services ............................................................................. 121 437-001-1035 Loss Prevention Services ........................................................................ 122 437-001-1040 Required Loss Prevention Services ........................................................ 123 Self-Insured and Group Self-Insured Employers’ Program 437-001-1050 Self-Insured and Group Self-Insured Employer Loss Prevention Assistance ......................................................................... 125 437-001-1055 Self-Insured and Group Self-Insured Employer Loss Prevention Programs ........................................................................... 125 437-001-1060 Self-Insured and Group Self-Insured Employer Loss Prevention Effort .................................................................................. 126 Assessment of Civil Penalties 437-001-1065 Penalty Provisions for Insurers................................................................ 127 Penalty Provisions for Self-Insured Employers .................................................................. 127 Division 1 ix Table of Contents Oregon Administrative Rules Oregon Occupational Safety and Health Division x Oregon Administrative Rules Oregon Occupational Safety and Health Division MODEL RULES OF PROCEDURE / NOTICE TO INTERESTED PERSONS OF RULEMAKING OAR 437, DIVISION 1 GENERAL ADMINISTRATIVE RULES RULES FOR THE ADMINISTRATION OF THE OREGON SAFE EMPLOYMENT ACT GENERAL INFORMATION 437-001-0001 Model Rules of Procedure. The Model Rules of Procedure, OAR 137-001-0005 through 137-001-0100, in effect on January 1, 2008, as promulgated by the Attorney General of the State of Oregon under the Administrative Procedures Act, are adopted as the rules of procedure for rulemaking actions of the Oregon Occupational Safety and Health Division. Stat. Auth.: ORS 654-025(2) and 656.726(4). Stats. Implemented: ORS 654.001 to 654.295. Hist: OR-OSHA Admin. Order 3-1991, f. 2/25/91, ef. 2/25/91. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 2-1996, f. 6/13/96, ef. 6/13/96. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. OR-OSHA Admin. Order 11-2000, f. 12/12/00, ef. 12/12/00. OR-OSHA Admin. Order 2-2002, f. 3/12/02, ef. 3/12/02. OR-OSHA Admin. Order 6-2004, f. 12/30/04, ef. 12/30/04. OR-OSHA Admin. Order 1-2006, f. 2/14/06, ef. 2/14/06. OR-OSHA Admin. Order 8-2008, f. 7/14/08, ef. 7/14/08. 437-001-0002 Notice to Interested Persons of Rulemaking. (1) Except when adopting a temporary rule, in accordance with ORS 183.335(5), the Director will give prior notice of the proposed adoption, amendment or repeal of an administrative rule by: (a) Publishing notice of the proposed action in the Secretary of State’s Oregon Bulletin at least 21 days prior to the effective date of the action. (b) Notifying interested persons and organizations on the Division’s notification lists of proposed rulemaking actions under ORS 183.335. The same information is also posted on the OR-OSHA web site at www.orosha.org. The Division will send the notice to those on OR-OSHA’s e-mail notification list, and mail paper copies to those on the hard-copy notification list. Both subscription methods are available on the web site listed above or call the Oregon OSHA Resource Center at 503-378-3272. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 9-1991, f. 4/25/91, ef. 4/25/91. OR-OSHA Admin. Order 6-1994, f. 9/30/94, ef. 9/30/94. 437-001-0001 OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. OR-OSHA Admin. Order 7-2006, f. 9/6/06, ef. 9/6/06. 1 437-001-0002(1)(b) AUTHORITY AND APPLICABILITY OF RULES Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0005 Authority and Applicability of Rules. (1) These rules are promulgated under the Director’s authority contained in ORS 654.025(2) and ORS 656.726(4). (2) Adoption Procedures: These rules for the Administration of the Oregon Safe Employment Act (OAR 437, Division 1) are adopted in accordance with ORS Chapter 183 and the Director’s Rules of Practice and Procedure Applicable to Rule Making Functions. (3) History: Prior “Rules for the Administration of the Oregon Safe Employment Act” (OAR 436, Division 46, Rules 436-46-005 through 436-46-750) were first adopted by WCB Admin. Order 19-1974; filed 6-5-74; effective 7-1-74. Amendments were made by: WCB Admin. Order 33-1974, f. 9-5-74, ef. 9-26-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 7-1979, f. 8-20-79, ef. 9-1-79. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. WCD Admin. Order, Safety 12-1982, f. 6-28-82, ef. 8-1-82. WCD Admin. Order, Safety 3-1983, f. 1-31-83, ef. 2-1-83. WCD Admin. Order, Safety 9-1983, f. 11-15-83, ef. 11-15-83. WCD Admin. Order, Safety 2-1984, f. 3-2-84, ef. 3-15-84. WCD Admin. Order, Safety 12-1984, f. 9-20-84, ef. 11-1-84. WCD Admin. Order, Safety 9-1986, f. 10-7-86, ef. 12-1-86. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 5-1988, f. 5-16-88, ef. 5-16-88. OAR 436, Division 46, Rules for the Administration of the Oregon Safe Employment Act, was redesignated as OAR 437, Division 1, by APD Admin. Order 7-1988, filed 6/17/88. Its effective date remains 7/1/74. (Note: See Historical Notes on Page 1 for more complete list of amendments.) Stat. Auth.: ORS 654-025(2) and 656.726(4). Stats. Implemented: ORS 654.001 to 654.295. Hist: OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 8-2008, f. 7/14/08, ef. 7/14/08. (1) – (3) Note 2 437-001-0005 Oregon Administrative Rules Oregon Occupational Safety and Health Division PURPOSE AND SCOPE OF RULES / DEFINITIONS 437-001-0010 Purpose and Scope of Rules. (1) These rules provide procedures by which the Division shall implement and enforce the Director’s authority and responsibilities under the Act. (2) The Director adopts OAR 437, Division 1, to assure, as far as possible, safe and healthful working conditions for every employee in Oregon, to preserve our human resources and to reduce the substantial burden which is created by occupational injury and disease. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974; f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 10-1990, f. 5/31/90, ef. 5/31/90 (temp). OR-OSHA Admin. Order 24-1990, f. 10/10/90, ef. 10/10/90 (perm). OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. 437-001-0015 Definitions. The following definitions shall apply to OAR 437, unless the context requires otherwise: Abatement – Action by an employer to comply with a cited violation of the Oregon Safe Employment Act. Accepted disabling claims – Claims accepted for disabling occupational injuries or illnesses only. A disabling injury or illness entitles the worker to compensation for disability or fatality. This type of claim excludes temporary total disability suffered during the first three calendar days after the employee leaves work as a result of the injury unless the worker is an inpatient in a hospital. Accepted disabling claims rate – The ratio of accepted disabling claims to annual average employment, times 100. Claims and employment figures are based upon the best knowledge of the Department at the time the rate is calculated (ADCR = Number of claims times 100 divided by the number of employees). Act – The Oregon Safe Employment Act (ORS 654.001 to 654.295, 654.750 to 654.780, and 654.991). Administrator – The Administrator of the Oregon Occupational Safety and Health Division (Oregon OSHA). Affected employee – An employee who, in the course and scope of employment, may be or may have been exposed to a condition or practice described in a citation, order, application for an extension date, or variance. Agent of the employer – Any supervisor or person in charge or control of the work or place of employment including, but not limited to, any manager, superintendent, foreperson, or lead worker. 437-001-0010(1) 3 437-007-0015 DEFINITIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division Appeal – A written request for a hearing to contest a citation, notice or order, a proposed assessment of civil penalty, and the period of time fixed for correction of a violation, or any of these, by filing with Oregon OSHA, within 30 days after receipt of the citation, notice or order, a written request for a hearing before the Workers’ Compensation Board. Such a request need not be in any particular form, but must specify the alleged violation that is contested and the grounds upon which the employer considers the citation or proposed penalty or correction period unjust or unlawful. Audiometric zero – The lowest sound pressure level that the average young adult with normal hearing can hear. Board – The Workers’ Compensation Board created by ORS 656.712. Catastrophe – An accident in which two or more employees are fatally injured, or three or more employees are admitted to a hospital or to an equivalent medical facility. Citation – A document issued by Oregon OSHA according to ORS 654.071 to cite a violation. A citation may include a notice of penalty and a correction order. Complaint – A written or oral report from an employee, employee representative or other person that an occupational safety or health violation may exist at a place of employment. A complaint may be classified as one of the following: (a) Imminent danger (b) Serious (c) Other than serious Compliance officer – A designated Oregon OSHA employee responsible for conducting inspections or investigations; identifying possible violations and hazards; proposing citations, penalties, and correction dates; and to assist employers and employees with information to correct violations and hazards. Comprehensive consultation – A consultation to cover the entire establishment and entails a physical hazard assessment evaluation and a review of records, written programs, and the employer’s illness and injury prevention plan. Comprehensive consultations include a written report by the provider including findings, recommendations, and the guidance necessary to resolve the problems noted in the report. Comprehensive inspection – A substantially complete inspection of the establishment. An inspection may be comprehensive even though, as a result of the exercise of professional judgment, not all potentially hazardous conditions, operations, and practices within those areas are inspected. Definitions 4 437-001-0015 Oregon Administrative Rules Oregon Occupational Safety and Health Division DEFINITIONS Consultant – A designated Oregon OSHA employee whose responsibility is to provide a full range of occupational safety and health assistance including, but not limited to, providing employers, employees, and other agency staff with information, advice, and recommendations on maintaining safe employment or a place of employment; on correcting violations or hazards; and on applicable occupational safety and health rules, techniques, devices, methods, practices, and development of safety and health programs. DART (Days Away, Restricted, or Transferred) – The number of lost workday injury and illness cases experienced by 100 full-time workers (DART rate = Number of lost workday cases times 200,000 divided by the number of employee hours worked). NOTE: Lost workday cases include both days away from work and days of restricted time. Decibel (dB) – Unit of measurement of sound level. For purposes of this rule, decibels refer to the combined average of the readings at 2000, 3000, and 4000 Hz on the audiogram. Department – The Department of Consumer and Business Services. Director – The Director of the Department of Consumer and Business Services, or the director’s designee. Division – The Oregon Occupational Safety and Health (Oregon OSHA) Division of the Department of Consumer and Business Services. Emphasis Program – A special program that targets Oregon OSHA activity to industries that have a high potential for serious injuries or illnesses, according to national or state data. Employee – Any individual, including a minor, whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, financial or otherwise and who is subject to the direction and control of an employer, and includes: Salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts, and other public corporations. Any person provided with workers’ compensation coverage as a subject worker under ORS Chapter 656, whether by operation of law or by election. Employee exposure record – A record of monitoring or measuring that contains qualitative or quantitative information indicative of employee exposures to toxic materials or harmful physical agents. This includes both individual exposure records and general research or statistical studies based on information collected from exposure records. Employee medical record – A record that contains information concerning the health status of an employee or employees exposed or potentially exposed to toxic materials or harmful physical agents. These records may include, but are not limited to: 437-001-0015 5 Definitions DEFINITIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division (a) The results of medical examinations and tests; (b) Any opinions or recommendations of a physician or other health professional concerning the health of an employee or employees; and (c) Any employee medical complaints relating to workplace exposure. Employee medical records include both individual medical records and general research or statistical studies based on information collected from medical records. Employee representative – A bargaining unit representative, or an individual selected by employees, who serves as their spokesperson. Employer – (a) Any person who has one or more employees, or (b) Any sole proprietor or member of a partnership who elects workers’ compensation coverage as a subject worker according to ORS 656.128, or (c) Any corporation in relation to the exposure of its corporate officers except for corporations without workers’ compensation coverage under ORS 656.128 and whose only employee is the sole owner of the corporation, or (d) Any successor or assignee of an employer. For purposes of this definition and ORS 654.005(5)(c), a business or enterprise is substantially the same entity as the predecessor employer if: (A) A majority of the current business or enterprise is owned by the former owners or their immediate family members, and (B) One or more of the following criteria exist for both the current and predecessor business or other enterprise: Substantially the same type of business or enterprise. Similar jobs and working conditions. A majority of the machinery, equipment, facility, or methods of operation. Similar product or service. A majority of the same supervisory personnel. A majority of the same officers and directors. NOTE: Not every element needs to be present for an employer to be a successor. The cumulative facts will determine the employer’s status. Employer representative – An individual selected by the employer, to serve as spokesperson or, in the absence of a selected spokesperson, the person in charge of the place of employment at the time of the inspection. Definitions 6 437-001-0015 Oregon Administrative Rules Oregon Occupational Safety and Health Division DEFINITIONS Environmental exposure sampling – Sampling of the workplace environment, performed for a variety of reasons including identifying of contaminants and their sources, determining worker exposures, and checking the effectiveness of controls. Establishment – An establishment is a single physical location doing business, offering services, or having industrial operations. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas, and sanitary services; and similar operations, the establishment is the main or branch office, terminal, station, etc. that either supervise such activities or are the base for personnel to carry out these activities. (a) One location/multiple establishments. Normally, one business location has only one establishment. Under limited conditions, two or more separate businesses that share a single location are separate establishments. An employer may divide one location into two or more establishments only when: (A) Each of the establishments represents a distinctly separate business; (B) Each business is engaged in a different economic activity; (C) Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, each business can be a separate establishment. (b) Multiple locations/one establishment. Only under certain conditions. An employer may combine two or more physical locations into a single establishment only when: (A) The employer operates the locations as a single business operation under common management; (B) The locations are all near each other; and (C) The employer keeps one set of business records for all the locations, such as records on the number of employees, their wages and salaries, sales or receipts, and other kinds of business information. For example, one manufacturing establishment might include the main plant, a warehouse a few blocks away, and an administrative services building across the street. (c) Telecommuting from home. For employees who telecommute from home, the employee’s home is not a business establishment, and a separate 300 Log is not required. Employees who telecommute must be linked to one of the business’ establishments under 437-001-0700(15)(c). 437-001-0015 7 Definitions DEFINITIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division Farm operation – Any operation involved in the growing or harvesting of crops or the raising of livestock or poultry. Filed – A document is considered to have been filed on the date of postmark if mailed, or on the date of receipt, if transmitted by other means to Oregon OSHA, DCBS, or the WCB. First aid – Any one-time treatment and subsequent observation of minor scratches, cuts, burns, splinters, or similar injuries that do not ordinarily require medical care. Such one-time treatment and subsequent observation is considered first aid even though it is provided by a physician or registered professional personnel. Fixed place of employment – The entire facility maintained by an employer at one general location, and operations provided from that facility, regardless of the size or number of departments or buildings in the facility. For the purpose of determining repeat violations, fixed place of employment includes employers or owners engaged in construction activity who will be at a single worksite continuously for more than 24 months. Forest activities are excluded as are construction sites established for a period of 24 months or less. Hazard – A condition, practice, or act that could result in an injury or illness to an employee. Health hazard – Health hazards mean carcinogens, lead, silica, toxic metals and fumes, vapors or gases, toxic or highly corrosive liquids or chemicals, chemical sensitizers, pesticides, fungicides, solvents, biological agents, and harmful physical stress agents. Imminent danger – A condition, practice, or act that exists in any place of employment and could reasonably be expected to cause death or serious physical harm immediately. Injury or illness – An injury or illness is an abnormal condition or disorder. Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation. Illnesses include both acute and chronic illnesses, such as, but not limited to, skin disease, respiratory disorder, or poisoning. (Note: Record injuries and illnesses only if they are new, work-related cases that meet one or more of the recording criteria.) Inspection – An official examination of a place of employment by a compliance officer to determine if an employer is in compliance with the Act. (a) Programmed. Inspections conducted under the provisions of OAR 437-001-0057. (b) Unprogrammed. (A) Follow-up inspection – An inspection to determine if a previously identified violation has been corrected. (B) Complaint inspection – An inspection made in response to a complaint. (C) Accident investigation – A systematic appraisal of an accident sequence to determine causal factors, corrective actions and preventative measures. Definitions 8 437-001-0015 Oregon Administrative Rules Oregon Occupational Safety and Health Division DEFINITIONS (D) Referral inspection – An inspection made in response to a referral. Letter of corrective action – A letter stating the corrective action(s) taken by the employer to comply with the violation(s) that were not corrected at the time of the inspection. Lost workdays – The actual number of days after, but not including, the day of injury or illness when the employee would have worked, but could not perform all or any part of their normal assignment during all or any part of the employee’s next regular workday or shift because of the occupational injury or illness. Medical treatment – Treatment administered by a physician or by registered professional personnel under the standing orders of a physician. Medical treatment does not include first aid treatment even though provided by a physician or registered professional personnel, nor does it include treatment ordinarily considered diagnostic or preventative in nature. MOD (Experience Rating Modification Factor) – Experience rating recognizes the differences among individual insureds with respect to safety and loss prevention. It compares the experience of individual insureds with the average insured in the same classification. The differences are reflected by an experience rating modification, based on individual payroll and loss records, that may result in an increase, decrease, or no change in premium. North American Industry Classification System (NAICS) – A classification system developed by the Executive Office of the President/Office of Management and Budget, for use in classifying establishments by the type of activity in which they are engaged. Each establishment is assigned an industry code for its major activity. The 2002 edition of the NAICS manual is used for coding. Order to correct – A written Oregon OSHA order that directs an employer to abate a violation within a given period of time. Owner – Every person having ownership, control, or custody of any place of employment or of the construction, repair, or maintenance of any place of employment. Partial inspection – An inspection with focus limited to certain potentially hazardous areas, operations, conditions, or practices at the establishment. The inspection may include review of injury and illness records and any required programs relative to the inspection. Person – One or more individuals, legal representatives, partnerships, joint ventures, associations, corporations (whether or not organized for profit), business trusts, or any organized group of persons, and includes the state, state agencies, counties, municipal corporations, school districts, and other public corporations or subdivisions. 437-001-0015 9 Definitions DEFINITIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division Personal exposure samples – Measurement of contaminants or physical agents to characterize the environment in the breathing or hearing zone of individual workers in order to evaluate their specific work exposures. Personal samplers are placed on the worker to obtain either one continuous sample covering a portion of the workday or consecutive samples covering a stated time period. Physician or other licensed health care professional – A physician or other licensed health care professional is an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows them to independently perform, or be delegated the responsibility to perform, the activities described by this regulation. Place of employment – (a) Includes every place that is fixed or movable; indoors, outdoors, or underground; and the premises and structures appurtenant thereto. (b) Includes every place where an employee works or intends to work either temporarily or permanently. (c) Includes every place where there is any process, operation, or activity related, either directly or indirectly, to an employer’s industry, trade, business, or occupation, including a labor camp provided by an employer for their employees or by another person engaged in providing living quarters or shelters for employees. (d) Does not include any place where the only employment involves nonsubject workers employed in or around a private home. (e) Does not include any corporate farm where the only employment involves the farm’s family members, including parents, spouses, sisters, brothers, daughters, sons, daughters-in-law, sons-in-law, nieces, nephews, or grandchildren. Record – Any recorded information regardless of its physical form or character. Recordable occupational injuries or illnesses – Any occupational injuries or illnesses that result in: (a) Fatalities, regardless of the time between the injury and death, or the length of the illness; (b) Lost workday cases, other than fatalities, that prevent the employee from performing their normal assignment during any part of the employee’s next regular, or any subsequent workday or shift; or Definitions 10 437-001-0015 Oregon Administrative Rules Oregon Occupational Safety and Health Division DEFINITIONS (c) Nonfatal cases without lost workdays that result in transferring to another job or terminating employment, require medical treatment (other than first aid), or involve loss of consciousness or restriction of work or motion. This category also includes any diagnosed occupational illnesses that are reported to the employer but are not classified as fatalities or lost workday cases. Referral – A notification made to the responsible agency of safety or health violations observed by an Oregon OSHA employee, other federal, state or local government representatives, or the media. Rule – Any agency directive, standard, regulation or statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedures or practice requirements of the agency and is adopted according to the Administrative Procedure Act. The term includes the amendment or repeal of a prior rule, but does not include, unless a hearing is required by statute, internal management directives, regulations, or statements that do not substantially affect the interests of the public. Scheduling list – An electronic or paper list of places of employment or employers scheduled for inspection. Serious physical harm: (a) Injuries that could shorten life or significantly reduce physical or mental efficiency by inhibiting, either temporarily or permanently, the normal function of a part of the body. Examples of such injuries are amputations, fractures (both simple and compound) of bones, cuts involving significant bleeding or extensive suturing, disabling burns, concussions, internal injuries, and other cases of comparable severity. (b) Illnesses that could shorten life or significantly reduce physical or mental efficiency by inhibiting, either temporarily or permanently, the normal function of a part of the body, even though the effects may be cured by halting exposure to the cause or by medical treatment. Examples of such illnesses are cancer, pneumoconiosis, narcosis, or occupational infections (caused by biological agents), and other cases of comparable severity. Standard threshold shift (STS) – A change in hearing threshold relative to the baseline audiogram of an average of 10 dB or more in either ear. Substantially similar – As it relates to a repeat violation, a second violation that is closely related in substance or form to a previous violation. Suspended penalty – A penalty that is determined but not assessed. 437-001-0015 11 Definitions DEFINITIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division Variance – The written authority given by Oregon OSHA to an employer permitting the use of a specific alternative means or method to comply with the intent of a rule. Specific types of variances are: (a) Permanent – A variance that remains in effect until modified or revoked according to OAR 437-001-0430; (b) Temporary – A variance granted for a stated period of time to permit the employer to achieve compliance with a new rule; (c) Research – A variance granted for a stated period of time to allow industrial or governmental research designed to demonstrate or validate new and improved safety or health techniques or products; and (d) Interim order – The temporary authority for an employer to use an alternative means or method by which the employer effectively safeguards the safety and health of employees until final action can be taken on the variance request. Violation – The breach of a person’s duty to comply with an Oregon occupational safety or health statute, regulation, rule, standard, or order. (a) Specific classifications of violations are: (a) Serious violation – A violation where there is substantial probability that death or serious physical harm could result from an existing condition, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use in a place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know about the violation; (b) Other than serious violation – A violation that is other than a serious or minimal violation; and (c) Minimal violation – A violation that does not have a direct or immediate relationship to the safety or health of employees. (b) Specific types of the above classifications are: (A) Willful violation – A violation that is committed knowingly by an employer or supervisory employee who, having a free will or choice, intentionally or knowingly disobeys or recklessly disregards the requirements of a statute, regulation, rule, standard, or order. (B) Unabated violation – A violation that has not been fully corrected by the date ordered. Definitions 12 437-001-0015 Oregon Administrative Rules Oregon Occupational Safety and Health Division DEFINITIONS (C) Repeat violation – (i) An employer’s second or subsequent violation involving a substantially similar violation as the earlier violation or violations. (ii) In these rules, repeat, repeated and repeatedly are used synonymously. (D) First-instance violation – An employer’s first violation of a particular statute, regulation, rule, standard, or order. (E) Egregious – Those conditions that normally constitute a flagrant violation of the Oregon Safe Employment Act, or Oregon OSHA standards, or regulations such that each instance of the violation is cited separately. (c) Combined violation – Multiple violations of the same statute, regulation, rule, standard, or order within an establishment that have been combined as one violation to indicate an overall lack of compliance with a safety or health statute, regulation, rule, standard, or order. (d) Grouped violation – Multiple violations of different statutes, regulations, rules, standards or orders, within an establishment that have been combined as one violation: (A) To indicate an increase in the severity or probability of the violation, or (B) Recordkeeping and posting requirements involving the same document, or (C) The violations are so closely related as to constitute a single hazardous condition. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.326, 654.412 through .423, 654.991. Hist: WCB Admin. Order, 19-1974, f. 6-5-74. ef. 7-1-74. OR-OSHA Admin. Order 2-1996, f. 6/13/96, ef. 6/13/96. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. OR-OSHA Admin. Order 5-1998, f. 10/15/98, ef. 10/15/98. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. WCD Admin. Order, Safety 7-1979, f. 8-20-79, ef. 9-1-79. OR-OSHA Admin. Order 11-1999, f. 10/20/99, ef. 10/20/99 (temp). WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. OR-OSHA Admin. Order 4-2000, f. 4/14/00, ef. 4/15/00. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. OR-OSHA Admin. Order 11-2001, f. 9/14/01, ef. 1/1/02. WCD Admin. Order, Safety 9-1983, f. 11-15-83, ef. 11-15-83. OR-OSHA Admin. Order 7-2002, f. 11/15/02, ef. 11/15/02. WCD Admin. Order, Safety 2-1984, f. 3-2-84, ef. 3-15-84. OR-OSHA Admin. Order 6-2003, f. 11/26/03, ef. 11/26/03. WCD Admin. Order, Safety 12-1984, f. 9-20-84, ef. 11-1-84. OR-OSHA Admin. Order 7-2006, f. 9/6/06, ef. 9/6/06. WCD Admin. Order, Safety 9-1986, f. 10-7-86, ef. 12-1-86. OR-OSHA Admin. Order 5-2007, f. 9/5/07, ef. 9/5/07 (temp). APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. OR-OSHA Admin. Order 1-2008, f. 2/22/08, ef. 3/1/08 (perm). APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 2-2009, f. 1/27/09, ef. 2/3/09. OR-OSHA Admin. Order 10-1990, f. 5/31/90, ef. 5/31/90 (temp). OR-OSHA Admin. Order 10-2009, f. 10/5/09, ef. 10/5/09. OR-OSHA Admin. Order 24-1990, f. 10/10/90, ef. 10/10/90 (perm). OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 2-2015, f. 3/18/15, ef. 1/1/16. OR-OSHA Admin. Order 6-1994, f. 9/30/94, ef. 9/30/94. 437-001-0015 13 Definitions AUTHORITY TO ADMINISTER / LIBERAL CONSTRUCTION / USE OF GENDER & NUMBER Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0020 Authority to Administer. (1) The Administrator is hereby granted authority to do whatever is reasonably necessary or incidental to accomplish the purposes of the Act and these rules. (2) The Administrator shall administer the Voluntary Compliance Program separately from the enforcement activities. The Voluntary Compliance Program includes but is not limited to, education, consultations, demonstration programs and research. (3) The Administrator shall name employees or classifications of employees who shall have authority to carry out the voluntary compliance and enforcement provisions of the Oregon Safe Employment Act. (4) The official acts of the Administrator in administering and enforcing the Oregon Safe Employment Act, and the acts of those designated by the Administrator, shall be considered the official acts of the Director. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0025 Liberal Construction. The Act, other rules adopted thereunder, and these rules shall be liberally construed to accomplish the preventative purposes expressed in the Act. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0030 Use of Gender and Number. For the purpose of these rules, each gender includes the other gender, the singular includes the plural and the plural includes the singular. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-0020(1) 14 437-001-0030 Oregon Administrative Rules Oregon Occupational Safety and Health Division OCCUPATIONAL SAFETY & HEALTH RULES / ADOPTION, AMENDMENT OR REPEAL OF RULES 437-001-0035 Occupational Safety and Health Rules. (1) The Division shall propose occupational safety and health rules for adoption by the Director. Proposed rules shall be: (a) Reasonable; (b) Mandatory; (c) Designed to protect the life, safety and health of employees; and (d) At least as effective as occupational safety and health rules adopted by the U.S. Department of Labor. (2) In proposing rules for adoption, the Division may consider recommendations from national standards-setting organizations, the U.S. Department of Labor, National Institute of Occupational Safety and Health (NIOSH), Centers for Disease Control (CDC), employers, employees, employee representatives and the Division’s occupational safety and health experience. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-0045 Adoption, Amendment or Repeal of Rules. (1) Rules will be adopted, amended or repealed in accordance with ORS Chapter 183 and the Director’s rules of practice and procedure applicable to rulemaking functions. (2) Any person may request the adoption, amendment or repeal of a rule. (3) A request for adoption, amendment or repeal of a rule shall: (a) Be in writing, addressed to the Administrator, OR-OSHA Division, Labor and Industries Building, Salem, Oregon 97310. (b) Identify the rule proposed for adoption, amendment or repeal and include reasons for the change. (4) Upon receipt of the request the Division shall, within 30 days, either deny the request or initiate rulemaking proceedings. 437-001-0035(1) 15 437-001-0045(4) ADOPTION, AMENDMENT OR REPEAL OF RULES / VOLUNTARY COMPLIANCE PROGRAM, GENERAL / ENFORCEMENT PROGRAM, GENERAL Oregon Administrative Rules Oregon Occupational Safety and Health Division (5) If the request to adopt, amend or repeal a rule is denied, the Division shall state its reasons for the denial in writing. A copy shall be mailed to the person making the request and all other persons upon whom a copy of the request was served. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0047 Voluntary Compliance Program, General. (1) The Division shall provide a coordinated program to encourage voluntary compliance with occupational health and safety laws, rules and codes and to promote more effective workplace health and safety programs. (2) The program shall be designed to assist employers achieve voluntary compliance and shall be administered to preclude issuance of citations and penalties except when an employer fails to correct serious violations identified. (3) The program shall include but is not limited to: (a) Health and safety consultative services; (b) Worker and employer training and education; (c) Research projects including: Causes and prevention of industrial accidents and diseases; trends demonstrating the need for licensing, certification, or new or revised rules; (d) Demonstration projects utilizing new or innovative processes or procedures to assist workers and employers in preventing occupational injury or disease, whatever the cause; (e) Publication and general distribution of training and accident prevention materials. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0050 Enforcement Program, General. The Division shall provide an effective program to enforce statutes, regulations, rules, standards or orders for the protection of the life, safety and health of employees. This program shall include, but is not limited to: (1) The inspection of places of employment; (2) The investigation of industrial accidents, fatalities or catastrophies; 437-001-0045(5) 16 437-001-0050(2) Oregon Administrative Rules Oregon Occupational Safety and Health Division ENFORCEMENT PROGRAM, GENERAL / PRESERVING PHYSICAL EVIDENCE AT THE SCENE OF AN ACCIDENT (3) Issuing citations for violations; (4) Identifying safety and health hazards which may or may not be violations and bringing them to the attention of employers and employees; (5) Issuing reasonable correction orders; (6) Assisting employers and employees in safety and health matters; (7) Assessing and collecting civil monetary penalties for violations; (8) Holding informal conferences with employers or employees to discuss citations, penalties or correction orders and other safety and health matters without limiting or extending the employer’s appeal rights; and (9) Granting or denying extensions of the times set by correction orders. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0053 Preserving Physical Evidence at the Scene of an Accident. (1) Employers, their representatives, or others shall not disturb the scene of a fatality or catastrophe other than to conduct the rescue of injured persons or mitigate an imminent danger until authorized by the Administrator (or designee), or directed by a recognized law enforcement agency. (2) In order to preserve physical evidence at the scene of a fatality or catastrophe, the Administrator is authorized to limit the number of employer representatives or employee representatives accompanying the compliance officer during the documentation of the scene. The employer representative and employee representative must be provided an opportunity to document the scene prior to disturbance or removal of physical evidence. (3) If an employer, their representative or others disturb the scene of a fatality or catastrophe other than to conduct the rescue of injured person(s) or mitigate an imminent danger before authorized by the Administrator or directed by a recognized law enforcement agency, a minimum penalty of $200 may be assessed. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-0050(3) 17 437-001-0053(3) PRIORITY OF INSPECTION Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0055 Priority of Inspections. Inspections will be prioritized to predominantly focus enforcement activities on places of employment reasonably believed to be the most unsafe. Inspections should generally be made according to the following priorities: (1) Imminent danger – An inspection should be made as soon as possible after the Division becomes aware of the condition, practice, or act that could reasonably be expected to immediately cause death or serious physical harm. (2) Fatality, catastrophe or accident – An inspection, if appropriate, should be made as soon as possible after the Division becomes aware of a fatality, catastrophe, or accident. (3) Complaint – An inspection may be initiated when the Division receives a complaint, based on the nature and credibility of the allegations. (4) Referral – An inspection may be made if safety or health violations were observed and referred by a Division employee; federal, state, or local government representative, or the media, based on the nature and credibility of the allegations. (5) Programmed Inspections – An inspection may be made by following the provisions in OAR 437-001-0057. (6) Follow-up – An inspection may be initiated when one or more of the following exists: (a) The employer requests removal of a red warning notice. (b) A variance has been denied. (c) An extension of time has been denied. (d) The Division believes the employer may not be in compliance with a previously cited violation, or needs monitoring as they progress towards correction of a violation. (e) The employer is issued an order for one or more violations that if cited could be considered serious. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 11-1999, f. 10/20/99, ef. 10/20/99 (temp). OR-OSHA Admin. Order 4-2000, f. 4/14/00, ef. 4/15/00. OR-OSHA Admin. Order 10-2009, f. 10/5/09, ef. 10/5/09. (1) - (6)(e) 18 437-001-0055 Oregon Administrative Rules Oregon Occupational Safety and Health Division SCHEDULING INSPECTIONS 437-001-0057 Scheduling Inspections. The following rules are intended to predominantly focus enforcement activities on the places of employment that the director reasonably believes to be the most unsafe. (1) The Division will schedule programmed inspections according to a priority system based on written neutral administrative standards. (2) The Division will identify the most hazardous industries and places of employment through information obtained from the Department of Consumer and Business Services claim and employer files, the Bureau of Labor Statistics Occupational Injury and Illness Survey, the Bureau of Labor Statistics Census of Fatal Occupational Injuries, the Oregon Employment Department, and knowledge of recognized safety and health hazards associated with certain processes. Health hazards include carcinogens, lead, silica, toxic metals and fumes, vapors or gases, toxic or highly corrosive liquids or chemicals, chemical sensitizers, pesticides, fungicides, solvents, harmful physical stress agents, and biological agents. (3) Scheduling lists will be provided by the Division to its field offices, at least annually. Note: An employer will be exempt from a programmed inspection of a fixed site from seven days prior to the scheduled date of an Oregon OSHA consultation to 60 days after receipt of the written consultation report. An employer will be exempt from a programmed inspection of a construction, forest activities or Agriculture Labor Housing site from seven days prior to the scheduled date of an Oregon OSHA consultation to 30 days after receipt of the written consultation report. (4) Scheduling Safety Inspections for Fixed Places of Employment. (a) The scheduling lists are compiled, using an electronic scheduling system, for safety enforcement managers to schedule inspections at fixed places of employment for each compliance officer. Written neutral administrative standards (the seven criteria listed below) are standardized using a statistical weighting method involving t-scores. These weighted scores are averaged across the seven criteria to create a composite score. This composite score is used to determine the position of each industry (using the 4-digit NAICS code) on the list from most to least hazardous. Source type Oregon total case incidence rate Oregon DART rate Federal total case incidence rate Federal DART rate Federal fatal case rate Oregon compensable fatality claims rate Oregon accepted disabling claims rate 437-001-0057 Data source Bureau of Labor Statistics Bureau of Labor Statistics Bureau of Labor Statistics Bureau of Labor Statistics Census of Fatal occupational injuries Oregon Worker Compensation Oregon Worker Compensation 19 Weighting factor 1.5 1.5 0.5 0.5 1 1 1 (1) - (4)(a) SCHEDULING INSPECTIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division Lists are divided into 10 tiers. Places of employment are randomly selected for inspection within each tier using the following percentages whenever a list is generated. The percentages will not be affected by the places of employment excluded in (4)(b) unless the number of exclusions makes it impossible to meet the target percentage. When that occurs, all remaining eligible places of employment will be selected. The scheduling lists will be sorted by field office. (A) 30 percent of places of employment under the NAICS identified as Tier A. (B) 25 percent of places of employment under the NAICS identified as Tier B. (C) 20 percent of places of employment under the NAICS identified as Tier C. (D) 15 percent of places of employment under the NAICS identified as Tier D. (E) 12.5 percent of places of employment under the NAICS identified as Tier E. (F) 10 percent of places of employment under the NAICS identified as Tier F. (G) 7.5 percent of places of employment under the NAICS identified as Tier G. (H) 5 percent of places of employment under the NAICS identified as Tier H. (I) 2.5 percent of places of employment under the NAICS identified as Tier I. (J) No more than 0.05 percent of places of employment under the NAICS not otherwise identified in Tiers A through I. (b) Places of employment will be exempt from programmed inspections if any of the following conditions apply: (A) A location has received a comprehensive safety inspection within the previous 36 months. (B) A location has received Voluntary Protection Program (VPP) status. (C) A location is in its second year, or later, of the Safety and Health Achievement Recognition Program (SHARP). (D) A location has graduated from the Safety and Health Achievement Recognition Program (SHARP). Locations are exempt from inspection for 36 months after graduation. (E) A location has received two consecutive comprehensive safety inspections with no serious, willful, or egregious violations, and with no inspections of any type resulting in serious, willful, or egregious violations since the date of the first of the two consecutive comprehensive inspections. (4)(a)(A) – (4)(b)(E) 20 437-001-0057 Oregon Administrative Rules Oregon Occupational Safety and Health Division SCHEDULING INSPECTIONS (F) A location has received certification as meeting the British Standards Institute’s OHSAS 18001 standards (Occupational Health and Safety Management Systems). Evidence of certification must be provided before the start of an inspection. (G) A location has a MOD rate of 0.50 and they provide evidence to that effect before the start of an inspection. (c) The field office managers will provide each compliance officer a list of inspections that are assigned in descending order from tiers A through J. The compliance officer will make a reasonable effort to inspect each place of employment on that list prior to receiving another list; however, failure to inspect all places of employment on a list will not invalidate subsequent inspections. The compliance officer’s list will generally be followed in descending order but may be inspected in any order to use the compliance officer’s time efficiently. (5) Scheduling Safety Inspections for Construction and Forest Activities. (a) Construction and forest activities scheduling lists will be used by safety enforcement managers and compliance staff to focus enforcement efforts on employers with the most hazardous places of employment. Employers will be selected and placed on one of two lists based on the following criteria: (A) Construction List – The following written neutral administrative standards will be used to select and rank employers on this list. Construction employers that have one or more accepted disabling claims in the first 12 of the previous 18 months and are ranked in the top 500 construction employers. The employers on this list will be ranked statewide using violation history, weighted claims rate, and weighted claims count as described in subsection (b) of this section. The 500 employers with the most points will be placed on a list. (B) Forest Activities List – The following written neutral administrative standards will be used to select and rank employers on this list. Forest activities employers that have one or more accepted disabling claims in the first 12 of the previous 18 months and are ranked in the top 50 forest activities employers. The employers on this list will be ranked statewide using violation history, weighted claims rate, and weighted claims count as described in subsection (b) of this section. The 50 employers with the most points will be placed on a list. (b) Ranking Factors: Construction and forest activities employers are ranked using violation history, weighted claims rate, and weighted claims count. The rankings from each factor are combined to produce a score for each employer, and the employers are ranked based on their score. The top 500 construction employers will be on one list and the top 50 forest activities employers will be on another list: 437-001-0057 21 (4)(b)(F) – (5)(b) SCHEDULING INSPECTIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division (A) Violation History: Employers with a violation history will be assigned points for each violation on citations that have become a final order within the previous 36 months. Willful violations are assigned five points, failure to abate violations four points, repeat violations three points, serious violations two points, and other-thanserious violations one point. Average points per citation will be determined with the employer having the most points receiving a ranking of one followed by the employer with the next highest points receiving a ranking of two, etc. Employers not inspected within 36 months are given a ranking of zero, that will put them at the top of this category. (B) Weighted Claims Count: Selected claims from the first 12 of the previous 18 months are assigned points based on the seriousness of the claim. These points are totaled for each employer. Employers are ranked on the total points with the employer having the most points receiving a rank of one, followed by the second highest weighted claims count receiving a ranking of two, etc. (C) . Weighted Claims Rate: Employers are ranked in this category with the highest weighted claims rate receiving a ranking of one, followed by the second highest weighted claims rate receiving a ranking of two, etc. The weighted claims count described in (B) above is used to determine the claims rate. NOTE: The selected claims and the points assigned to the selected claims will be identified by the agency in a program directive. (c) The field office manager will provide selected compliance officers the construction and/or forest activities lists. The compliance officers will make a reasonable effort to locate and inspect those employers on the construction and forest activities lists, however failure to inspect all employers on a list will not invalidate subsequent inspections. (6) Scheduling Health Inspections of Fixed Places of Employment. (a) The scheduling lists are designed as an electronic scheduling system used by health enforcement managers to schedule inspections at fixed places of employment for each compliance officer. Places of employment will be listed by NAICS and randomly selected within each tier using the following percentages whenever a list is generated. The scheduling lists will be sorted by field office. (A) 7.5 percent of places of employment under the NAICS identified as Tier A. (B) 2.5 percent of places of employment under the NAICS identified as Tier B. (C) Not more than 0.05 percent of places of employment under NAICS not identified in Tiers A and B. (b) Places of employment will be exempt from programmed inspections if any of the following conditions apply: (A) A location has received a comprehensive health inspection within the previous 36 months. (5)(b)(A) - (6)(b)(A) 22 437-001-0057 Oregon Administrative Rules Oregon Occupational Safety and Health Division SCHEDULING INSPECTIONS (B) A location has received Voluntary Protection Program (VPP) status. (C) A location is in its second year, or later, of the Safety and Health Achievement Recognition Program (SHARP). (D) A location has graduated from the Safety and Health Achievement Recognition Program (SHARP). Locations are exempt from inspection for 36 months after graduation. (E) A location has received two consecutive comprehensive health inspections with no serious, willful, or egregious violations, and with no inspections of any type resulting in serious, willful, or egregious violations since the date of the first of the two consecutive comprehensive inspections. (F) A location has received certification as meeting the British Standards Institute’s OHSAS 18001 standards (Occupation Health and Safety Management Systems). Evidence of certification must be provided before the start of an inspection. (G) A location has a MOD rate of 0.50 and they provide evidence to that effect before the start of an inspection. (c) The field office managers will provide each compliance officer a list of inspections that are assigned in descending order from lists the health scheduling. The compliance officer will make a reasonable effort to inspect each place of employment on that list prior to receiving another list; however, failure to inspect all places of employment on a list will not invalidate subsequent inspections. The compliance officer’s list will generally be followed in descending order but may be inspected in any order to use the compliance officer’s time efficiently. (7) Scheduling Health Inspections for Nonfixed Places of Employment – An inspection may be scheduled from information such as recognized health hazards known to be associated with certain processes are reasonably thought to exist at a place of employment (8) Random Inspections – The Division will conduct random inspections of places of employment that are scheduled and conducted under written neutral administrative standards. Program directives will be issued and changed when the director believes it necessary to preserve the random nature of the inspections. (9) Emphasis Inspections – An inspection may be made if the place of employment is included in a national or local safety or health emphasis program. Emphasis programs are established by identifying the most hazardous industries and processes through information obtained from the Department of Consumer and Business Services claim files, the Bureau of Labor Statistics Occupational Injury and Illness Survey, the Oregon Employment Department, and knowledge of recognized hazards associated with certain processes. Program directives will be issued to establish and describe emphasis programs and the written neutral administrative standards that will be used to schedule the inspections. 437-001-0057 23 (6)(b)(B) – (9) SCHEDULING INSPECTIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division (10) Farm Labor Housing Inspections – Farm labor housing is a national and local emphasis program. A list of all known farm labor housing locations will be sent to field offices annually. Locations may be selected and inspected in any order to make efficient use of available resources. Housing locations not on the list may also be inspected. Farm labor housing is not an agricultural operation; therefore, the agriculture exemption for employers of 10 or fewer permanent, year-round employees does not apply to farm labor housing inspections. (11) The Division will annually make reasonable efforts to notify, in writing, each employer whose place of employment is rated as one of the most unsafe places of employment, that there is increased likelihood of inspection of the employer’s place of employment and consultative services are available. (12) Agricultural employers with 10 or fewer permanent, year-round employees, both fulltime and part-time, will be subject to scheduled inspections only if any of the following has occurred: (a) A valid complaint has been filed according to ORS 654.062, or (b) Within the preceding two year period, an accident at the employer’s agricultural resulted in death a serious or disabling injury from a violation of the Oregon Safe Employment Act or rule adopted under the act, or (c) The employer and principal supervisors of the agricultural establishment have not annually completed at least four hours of instruction on agricultural safety or health rules and procedures. This instruction must be documented. (A) Instruction includes any instruction conducted or accepted by Oregon OSHA or instruction related to agricultural safety and health that is offered or approved by any public or private college, university, or governmental agency. The employer must maintain documentation of the instruction. The documentation must include the date, provider, subject, and duration of the instruction, and the signature of the person completing the instruction. NOTE: Certified Applicator Training Core A and B offered by the Oregon Department of Agriculture will satisfy a portion of the required training. One hour credit will be allowed annually for this training. (B) For purposes of these sections, the time period begins to run when the instruction is received, or (d) Within the preceding four-year period, the agricultural establishment has not had a comprehensive consultation by an individual acting in a public or private consultant capacity. For purposes of this section, the time period begins to run when the consultation is received, or (e) If the consultation was done and the agricultural employer has failed to correct violations noted in the consultation report within 90 days after receiving the report. NOTE: For purposes of determining the number of employees, members of the agricultural employer’s immediate family are excluded. This includes grandparents, parents, children, stepchildren, foster children, and any blood relative living as a dependent of the core family. (10) - (12)(e) Note 24 437-001-0057 Oregon Administrative Rules Oregon Occupational Safety and Health Division SCHEDULING INSPECTIONS (13) Evaluation of Enforcement Scheduling: (a) Each year Oregon OSHA will complete a summary evaluation of enforcement scheduling, including (but not limited to) the number of scheduled inspections and the basis for those inspections, the number of attempted scheduled inspections that could not be completed, and the results of those inspections. (b) At least every three years beginning by July 1, 2012, Oregon OSHA will assess the enforcement scheduling system and other available data to ensure that the scheduling system continues to accomplish its statutory purpose of predominantly focusing Oregon OSHA enforcement resources on those places of employment reasonably believed to be the most unsafe. NOTE: See Safety by NAICS, Safety by Tier/Rank, Health by NAICS, to review safety and health scheduling lists of employers identified by NAICS codes and their placement in appropriate tiers. These supplementary documents are available at the above links and on our web site at www.orosha.org then Rules/Compliance, Final Rules, Division 1, following 437-001-0057. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 11-1999, f. 10/20/99, ef. 10/20/99 (temp). OR-OSHA Admin. Order 4-2000, f. 4/14/00, ef. 4/15/00. OR-OSHA Admin. Order 7-2006, f. 9/6/06, ef. 9/6/06. OR-OSHA Admin. Order 10-2009, f. 10/5/09, ef. 10/5/09. OR-OSHA Admin. Order 2-2011, f. 9/29/11, ef. 10/1/11. 437-001-0057 25 (13)(a) – Note Oregon Administrative Rules Oregon Occupational Safety and Health Division 26 Oregon Administrative Rules Oregon Occupational Safety and Health Division ADVANCE NOTICE / RIGHT OF ENTRY 437-001-0060 Advance Notice. (1) No person shall give advance notice of an inspection without authority of the Director, subject to penalties as prescribed in ORS 654.991(2). (2) If the Director approves a request for advance notice of an inspection: (a) The notice shall not be given more than 24 hours in advance; and (b) When advance notice is given to the employer, the employer shall, without delay, notify the employee representative of the proposed inspection, or in the absence of an employee representative, immediately post a notice in a sufficient number of locations in the place of employment to reasonably inform employees of the planned inspection. Any employer who fails to notify the employees, through posting, of the proposed inspection shall be assessed a penalty not to exceed $1,000 as prescribed in ORS 654.086(1)(f). (3) It will not be considered advance notice to advise a federal or state agency of a proposed inspection in order to avoid duplicate inspections or to facilitate enforcement. (4) Any person who gives advance notice of any safety or health inspection without authority from the director or his designee shall be punished, upon conviction, by being assessed a penalty not to exceed $1,000 or be imprisoned for not more than 6 months, or both, as prescribed in ORS 654.991(2). Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0065 Right of Entry. (1) A Compliance Officer has the right to enter and inspect any place of employment during working hours or at other reasonable times, within reasonable limits, and in a reasonable manner. (2) Right of Entry. A compliance officer is authorized to document an accident scene reported pursuant to OAR 437-001-0704 prior to an opening conference when it is likely that the accident scene cannot be preserved and after a reasonable attempt is made to contact an employer or employer representative. (3) A Compliance Officer shall present his/her credentials to an employer or employer’s representative to establish the Compliance Officer’s right of entry. 437-001-0060(1) 27 437-001-0065(3) RIGHT OF ENTRY / INSPECTION WARRANTS / OPENING CONFERENCE Oregon Administrative Rules Oregon Occupational Safety and Health Division (4) The Compliance Officer shall not sign any form of liability release or agree to waive any rights of the Department. (5) The Compliance Officer shall have the right to enter and inspect any place of employment accompanied or assisted by outside engineers or specialists who have signed confidentiality agreements, agreeing to protect the inspected parties’ trade secrets. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. OR-OSHA Admin. Order 7-2002, f. 11/15/02, ef. 11/15/02. 437-001-0070 Inspection Warrants. If a Compliance Officer is denied entry, the OR-OSHA Division may institute action to obtain an inspection warrant, as provided for in ORS 654.202 to 654.216. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0075 Opening Conference. (1) The Compliance Officer shall, if possible, conduct a joint opening conference with the employer or a representative, and a representative of the employees, if any, and shall: (a) Present credentials as a means of identification; (b) Explain the purpose, nature and intended scope of the inspection; (c) Request the records which need to be examined; (d) Obtain the name of the employer representative, if any, and give that person the opportunity to accompany the Compliance Officer on the inspection; (e) Obtain the name of the employee representative, if any, and give that person the opportunity to accompany the Compliance Officer on the inspection; (f) Explain that employee participation may be accomplished through random interviews; (g) Determine if there are trade secrets to be protected; (h) Inform the employer that sampling may be done and photographs may be taken; (i) Explain that past and present efforts will be evaluated to determine good faith penalty adjustments. 437-001-0065(4) 28 437-001-0075(1)(i) Oregon Administrative Rules Oregon Occupational Safety and Health Division OPENING CONFERENCE / INSPECTION WITHOUT EMPLOYER OR EMPLOYER REPRESENTATIVE (j) Determine what personal protective equipment is required in the place of employment and arrange to have and use such equipment; and (k) Explain that a closing conference will be held with both the employer or a representative, and a representative of the employees, if any. (2) Where the Compliance Officer decides it is not practical to hold a joint conference, separate conferences shall be held for the employer or a representative, and a representative of the employees, if any. Notes shall be taken by the Compliance Officer during the separate conferences; these will be available upon request. (3) Where separate conferences are necessary, the Compliance Officer shall determine if their conduct will delay observation or evaluation of workplace safety or health hazards. In such cases, the conferences shall be brief and, if appropriate, reconvened after the Compliance Officer’s inspection of the place of employment. (4) Where the holding of an opening conference will prevent timely evaluation of the workplace, it may be abbreviated to a simple introduction and identification of the Compliance Officer. The remainder of the opening conference will be covered as soon as possible. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 2-2012, f. 5/11/12. ef. 7/1/12. 437-001-0080 Inspection Without Employer or Employer Representative. (1) A Compliance Officer may make an inspection without an opening or closing conference if the employer or employer representative is absent or declines to participate. (2) If the employer, employer representative or employee representative is absent from the place of employment, following the inspection the Compliance Officer shall make at least one attempt on each of two different days to advise the employer, employer representative or employee representative concerning the inspection. (3) No inspection will be made if neither the employer, employer representative, nor employees are present at the place of employment, except when executing an inspection warrant as provided in ORS 654.216(2) or when posting a Red Warning Notice as provided for in ORS 654.082. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. 437-001-0075(1)(j) 29 WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0080(3) EMPLOYEE REPRESENTATION ON INSPECTION TEAM / INSPECTION PROCEDURES Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0085 Employee Representation on Inspection Team. (1) An employee representative has the right to accompany a Compliance Officer during an inspection of the place of employment. (2) If there is no employee representative during an inspection, the Compliance Officer shall interview, if practicable, a reasonable number of employees about safety and health in the place of employment. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0090 Inspection Procedures. During an inspection a Compliance Officer is authorized to: (1) Inspect without unreasonably disrupting operations in a place of employment all required records, conditions, structures, machines, materials and methods for compliance with statutes, regulations, rules, standards and orders, and identify and document hazards; (2) Photograph or video tape unsafe acts, practices, procedures or physical hazards; (3) Take environmental and personal exposure samples; (4) Allow a different employer representative or employee representative to accompany the Compliance Officer during separate phases of the inspection if this will facilitate the inspection; (5) Resolve all disputes as to who is the representative authorized by the employer and the representative authorized by the employees to accompany the Compliance Officer on the inspection. (6) Deny the right to participate to any person whose conduct interferes with a fair and orderly inspection; (7) Inform the employer representative and employee representative of any apparent violations, and hazards; (8) Collect, including but not limited to, information for the purpose of classifying any apparent violations as minimal, other than serious, or serious, and collect data for the purpose of calculating penalty assessment; (9) Interview privately a reasonable number of employees about safety and health in the place of employment; 437-001-0085(1) 30 437-001-0090(9) Oregon Administrative Rules Oregon Occupational Safety and Health Division INSPECTION PROCEDURES / RED WARNING NOTICE (10) Receive information in confidence from an employee or employee representative; and (11) Stop the inspection if a situation involving imminent danger is observed, request the employer or the employer representative to advise affected employees and correct the imminent danger, and post a Red Warning Notice according to OAR 437-001-0096, if the employer or the employer representative refuses to protect the employees from the imminent danger. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. 437-001-0096 Red Warning Notice. (1) The Red Warning Notice shall be authorized by either the Director, Administrator, Manager of Enforcement, or Field Office Supervisors. For purposes of this rule, a Camp Closure Notice is a Red Warning Notice. (2) When action is necessary to preclude or eliminate exposure of employees to a condition which, if such exposure occurred or continued, would constitute a violation of any statute or of any lawful regulation, rule, standard or order, affecting employee safety or health at a place of employment, a Compliance Officer shall obtain permission to post a Red Warning Notice. The notice shall be posted in plain view of any person likely to use the place of employment, machine, device, apparatus or equipment that constitutes the hazard. (3) Any place of employment, machine, device, apparatus or equipment on which a Red Warning Notice has been posted shall not be operated or used by any person until: (a) The condition has been made safe and healthful; and (b) The Red Warning Notice has been removed by the Division; however, (c) Nothing in this section prohibits an employer from using any place of employment, or operating any machine, device, apparatus or equipment, exclusively for the purpose of remedying the violation, pursuant to the instructions on the Red Warning Notice. (4) No person shall deface or destroy a Red Warning Notice, or remove it without authorization from the Division. (5) The Red Warning Notice will be removed after: (a) Notification from the employer that the condition has been corrected; and 437-001-0090(10) 31 437-001-0096(5)(a) RED WARNING NOTICE / CLOSING CONFERENCE Oregon Administrative Rules Oregon Occupational Safety and Health Division (b) A follow-up inspection or other information confirms that the condition has been corrected. (6) Any person who violates or directs another to violate OAR 437-001-0096(3) or (4) shall be assessed a civil penalty of not less than $100 and not more than $5000 for each such violation. (7) Any employer who violates or directs an employee to violate OAR 437-001-0096(3), and the violation is determined to be a willful violation, may be assessed a civil penalty of not less than $5,000 and not more than $70,000. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 6-2003, f. 11/26/03, ef. 11/26/03. 437-001-0099 Closing Conference. (1) The Compliance Officer shall, if practicable, conduct a joint closing conference with the employer or a representative, and a representative of the employees, if any, and shall advise these representatives: (a) Of any violation(s) as a result of the inspection and of any hazards which at this time may not be a violation. (b) Of the right to present any pertinent information regarding the violation(s); (c) That a citation shall be issued for all other than serious or serious violations even if the violations were corrected at the time of the inspection; (d) That penalties may be imposed for other than serious violations and shall be imposed for serious violations; (e) That a reasonable time for correction of each alleged violation shall be proposed; (f) That further correspondence separate from the citation regarding the inspection will be received detailing the nonviolation hazards observed during the inspection; (g) Of all posting requirements contained in OAR 437-001-0275 and 437-001-0280; (h) That if the employer fails to correct any violation by the date indicated on the citation, additional penalties may be imposed for each day the violation(s) remains uncorrected (See OAR 437-001-0235); (i) Of employee protection against discrimination (See OAR 437-001-0295); 437-001-0096(5)(b) 32 437-001-0099(1)(i) Oregon Administrative Rules Oregon Occupational Safety and Health Division CLOSING CONFERENCE (j) Of appeal rights contained in ORS 654.078 and OAR 438-85-006 to 438-85-870; (k) Of rights to an informal conference (See OAR 437-001-0255); (l) Of extension procedures (See OAR 437-001-0240); (m) Of consultative services available through the Department and workers’ compensation insurance carriers (See OAR 437-001-0450 through 437-001-0460); (n) Of variance procedures (See OAR 437-001-0400 through 437-001-0435); (o) Of the possibility of follow-up inspections; (p) That if any safety or health condition was encountered which was beyond the expertise of the Compliance Officer, that condition will be considered a referral and may be addressed by another representative of the OR-OSHA Division. (q) Of the availability of return visits by the Compliance Officer to assist the employer in obtaining compliance. (2) Where the Compliance Officer decides it is not practical to hold a joint conference, separate conferences shall be held for the employer or a representative, and a representative of the employees, if any. Notes shall be taken by the Compliance Officer during the separate conferences; these will be available upon request. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. 437-001-0099 33 (1)(j) - (2) EVALUATION OF PROBABILITY TO ESTABLISH PENALTIES Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0135 Evaluation of Probability to Establish Penalties. (1) The probability of an accident which could result in an injury or illness from a violation shall be determined by the Compliance Officer and shall be expressed as a probability rating. (2) The factors to be considered in determining a probability rating may include, as applicable: (a) The number of employees exposed; (b) The frequency and duration of exposure; (c) The proximity of employees to the point of danger; (d) Factors, which require work under stress; (e) Lack of proper training and supervision or improper workplace design; or (f) Other factors which may significantly affect the degree of probability of an accident occurring. (3) The probability rating is: (a) Low – If the factors considered indicate it would be unlikely that an accident could occur; (b) Medium – If the factors considered indicate it would be likely that an accident could occur; or (c) High – If the factors considered indicate it would be very likely that an accident could occur. (4) The probability rating may be adjusted on the basis of any other relevant facts which would affect the likelihood of injury or illness. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. (1) – (4) 34 437-001-0135 Oregon Administrative Rules Oregon Occupational Safety and Health Division EVALUATION OF SEVERITY TO ESTABLISH PENALTIES / PENALTY FOR OTHER THAN SERIOUS OR SERIOUS VIOLATION 437-001-0140 Evaluation of Severity to Establish Penalties. (1) A severity rating for each violation shall be determined by the Compliance Officer on the basis of the degree of injury or illness which is reasonably predictable. If more than one injury or illness is reasonably predictable, the Compliance Officer will determine the severity based upon the most severe injury or illness. Severity ratings will be selected from the following schedule: (a) Other Than Serious – Conditions that could cause injury or illness to employees but would not include serious physical harm; (b) Serious Physical Harm; or (c) Death. (2) The severity rating may be adjusted on the basis of any other relevant facts which would affect the severity of the possible injury or illness. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. 437-001-0145 Penalty for Other than Serious or Serious Violation. (1) A penalty must be assessed for any serious violation and may be assessed for any other than serious violation as established by the intersection of the probability rating and severity rating on the Penalty Schedule (Table 1). In a case where probability and severity are not appropriate considerations, a penalty may be assessed by considering the facts of the violation. PROBABILITY SEVERITY OTHER THAN SERIOUS PENALTY TABLE 1 PROBABILITY SEVERITY SERIOUS SERIOUS PHYSICAL HARM LOW 0 HIGH $300 DEATH LOW $300 $2,100 MEDIUM $500 $3,500 $1,250 $7,000 HIGH (2) Penalty adjustments will be made based on an employer’s size for all violations except failure to correct. Additional adjustments for an employer’s compliance history, injury and illness history, demonstrated good faith efforts and corrective action taken at the time of the inspection will be determined by the Compliance Officer and assessed as follows: 437-001-0140(1) 35 437-001-0145(2) PENALTY FOR OTHER THAN SERIOUS OR SERIOUS VIOLATION Oregon Administrative Rules Oregon Occupational Safety and Health Division (a) Size adjustments – based on state wide peak employment: SIZE TABLE 2 Number of employees Percent reduction 1-25 60 26-90 40 91-130 30 131-175 20 176-250 10 251 or more No adjustment (b) History adjustments will be based on injuries and illnesses (and trends) during the previous three years, including available information from both Workers’ Compensation data and Bureau of Labor Statistics. This assessment will also include a review of the employer’s violation history within the past 3 years. Adjustments will be made as follows: 10% reduction if the compliance officer determines that the information demonstrates a positive history overall. No reduction if the compliance officer determines that history is what would be expected of a typical employer. 10% increase if the compliance officer determines that the information demonstrates a negative history overall. (c) Good faith adjustments will be determined by, but not limited to, review of certain criteria as follows: Evidence of an overall safety and health program. Effective communication of safety and health policies. Promotion of safety and health prior to the inspection. Employees are clearly involved in the safety and health program. Management’s commitment at all levels is apparent. Worksite hazard analysis is conducted. Employees and managers alike are held accountable for safety and health. Adjustments will be made as follows: 20% reduction in penalties if the compliance officer determines that the information demonstrates a better than average effort to comply with the law and rules. No adjustment if the compliance officer determines that the information demonstrates an employer’s good faith effort is at the norm. May increase penalties by 20% if the compliance officer determines that the information demonstrates a poorer than normal effort to comply with the law and rules. (d) A 10% reduction will be provided for immediate corrections of violations or other unsafe conditions identified during the inspection provided that such corrective action is substantial and not temporary or superficial. (2)(a) – (2)(d) 36 437-001-0145 Oregon Administrative Rules Oregon Occupational Safety and Health Division PENALTY FOR OTHER THAN SERIOUS OR SERIOUS VIOLATION (3) Penalty adjustments, except for size, will not be applied to repeat violations, willful violations or to any violation which the compliance officer determines contributed to an injury, illness or death of an employee. Adjustments will not reduce the penalty to less than the mandatory minimum penalty which has been established by rule or statute or increase them beyond the maximum penalty established by statute. (4) The adjusted penalty for a serious violation will not be less than $100. (5) Penalties for combined violations will be calculated by taking the number of violations into account when assessing probability. Severity will be determined by identifying the most severe reasonably predictable injury or illness that could occur. (6) The penalty for grouped violations of different rules is calculated by determining the probability and severity for the entire group. (7) The Administrator may assess a penalty of up to $7,000 for any violation after considering the facts. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. WCD Admin. Order, Safety 12-1982, f. 9-20-84, ef. 11-1-84. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 5-1988, f. 5-16-88, ef. 5-16-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 7-1995, f. 7/5/95, ef. 7/5/95. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0145 37 (3) - (7) Oregon Administrative Rules Oregon Occupational Safety and Health Division 38 Oregon Administrative Rules Oregon Occupational Safety and Health Division DETERMINATION OF PENALTY – FAILURE TO CORRECT / PENALTY CRITERIA - REPEAT VIOLATION 437-001-0155 Determination of Penalty – Failure to Correct. (1) A citation shall be issued for an employer’s nonabatement of a violation. (2) Penalties of not more than $7,000 per day for failure to correct a violation: (a) May be assessed for each workday, or part of a day, that the violation results in continued exposure after the ordered correction date; (b) Shall be determined by considering the probability and severity of the original violation, the efforts of the employer to correct the violation, and factors which delayed the employer in correcting the violation; and (c) If failure to correct the violation results from the employer’s lack of diligence, the penalty shall be not less than $50 for other than serious violations, and not less than $250 for serious violations, for each day or part of a day, during which the violation remains uncorrected. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74 ef. 7-1-74. WCB Admin. Order 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. 437-001-0160 Penalty Criteria – Repeat Violation. Oregon OSHA will identify repeat violations as follows: (1) An employer’s second or subsequent violation involving a substantially similar violation, cited within the previous three years, will be cited as a repeat violation as described below. (2) When citing an identical standard for a violation of a previously cited statute, regulation, rule, standard or order it will be presumed to be a repeat violation. That presumption can be disproven only if the circumstances clearly demonstrate that the violation is not substantially similar to a previously cited violation. Example: Previously a citation was issued for a violation of 1910.212(a)(1) for not guarding ingoing nip points. A recent inspection of the same establishment revealed a citation of 1910.212(a)(1) for not guarding against flying chips and sparks. Although the same standard was cited, the hazardous conditions are clearly not substantially similar and a repeat violation would not be appropriate. 437-001-0155(1) 39 437-001-0160(2) PENALTY CRITERIA – REPEAT VIOLATION Oregon Administrative Rules Oregon Occupational Safety and Health Division (3) When citing a different standard, in some circumstances, substantially similar conditions can be demonstrated. In such cases, if the violations found are substantially similar a repeat violation would be appropriate even though the standards are different. Example #1: Previously a citation was issued for a failure to install appropriate scaffold guardrails under the Division 3 Construction standards. A recent inspection of the same employer found a violation for a failure to install appropriate scaffold guardrails, but this time the operation involved activities covered by the Division 2 General Industry standard. Although two different standards are cited, the violations are substantially similar and would therefore be treated as a repeat. Example #2: Previously a citation was issued for failure to have a respirator program in a Division 2 General Industry situation where exposure to asbestos would require one. A recent inspection of the same employer found a violation for not requiring employees to wear respirators while performing lead related tasks in the Lead, Division 3 Construction standard that requires respiratory protection. Although two different standards are cited, the violations are substantially similar and would therefore be treated as a repeat. (4) Where a previously cited violation is under appeal and not yet final: (a) The second violation will be cited as a repeat violation; and (b) Such citation will state that the earlier violation is under appeal and the repeat classification of the current violation will be rescinded if the earlier violation does not become final. (5) At fixed places of employment, “high serious” and “death” rated violations will be issued as repeat violations at all of an employer’s places of employment in the state. Repeat violations for all other violation types will be limited to the cited place of employment. (6) At nonfixed places of employment, repeat violations will be based on earlier violations occurring anywhere within the state. Where the Administrator, or designee, determines in his or her discretion that the span of control and nature of activity for a portion of the state is more readily comparable to fixed location activity, repeat violations will be handled in a manner consistent with fixed places of employment. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. APD Admin. Order 7-1989, f. 5-1-89, ef. 5-1-89 (temp). APD Admin. Order 10-1989, f. 7-7-89, ef. 7-7-89 (perm). OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 6-1994, f. 9/30/94, ef. 9/30/94. OR-OSHA Admin. Order 2-2009, f. 1/27/09, ef . 2/3/09. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. (3) – (6) 40 437-001-0160 Oregon Administrative Rules Oregon Occupational Safety and Health Division DETERMINATION OF PENALTY – REPEAT VIOLATION / DETERMINATION OF PENALTY – FAILURE TO REPORT AN OCCUPATIONAL FATALITY, CATASTROPHE, OR ACCIDENT 437-001-0165 Determination of Penalty – Repeat Violation. (1) The penalty for a repeat violation will be calculated by multiplying the penalty for the current violation by the following factors: Penalties for Repeat Violations 1st repeat 2nd repeat 3rd repeat 4th repeat 5th repeat Additional repeats X2 X5 X 10 X 15 X 20 Discretion of Administrator (2) The total penalty for a repeat violation will not be less than $200, nor more than the statutory maximum of $70,000. (3) For a repeated other than serious violation that otherwise would have no initial penalty, a penalty of $200 will be assessed for the first repeated violation, $500 if the violation has been cited twice before, and $1,000 for a third repeat. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order 33-1974, f. 9-5-74, ef. 9-26-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. APD Admin. Order 7-1989, f. 5-1-89, ef. 5-1-89 (temp). APD Admin. Order 10-1989, f. 7-7-89, ef. 7-7-89 (perm). OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0170 Determination of Penalty – Failure to Report an Occupational Fatality, Catastrophe, or Accident. If an employer fails to report an occupational fatality, catastrophe, or accident as provided in OAR 437-001-0704, a penalty of not less than $250, nor more than $7,000, shall be assessed. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCD Admin. Order, Safety 4-1981, f. 5-22-81 ef. 7-1-81. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 7-2002, f. 11/15/02, ef. 11/15/02. 437-001-0165(1) 41 437-001-0170 DETERMINATION OF PENALTY – FAILURE TO REGISTER A FARM LABOR CAMP/FACILITY / WILLFUL OR EGREGIOUS VIOLATION / FAILURE TO NOTIFY EMPLOYEES OF ADVANCE NOTICE / RELATING TO RED WARNING NOTICE Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0171 Determination of Penalty – Failure to Register a Farm Labor Camp/Facility. If an operator, employer or contractor fails to register a Farm Labor Camp or facility with Oregon OSHA as required in Division 4/J, 437-004-1120(5)(b), a penalty of not less than $250 nor more than $7,000, shall be assessed. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 315.164, 658.750, 658.755, 658.780, 658.785, 658.805, 658.810 and 658.825. Hist: OR-OSHA Admin. Order 10-1995, f. 11/29/95, ef. 11/29/95. OR-OSHA Admin. Order 6-2003, f. 11/26/03, ef. 11/26/03. 437-001-0175 Determination of Penalty – Willful or Egregious Violation. For a willful violation, the Administrator, after considering the facts of the violation, may assess a penalty of not less than $5,000, nor more than $70,000. The base penalty will normally be multiplied by 25. For egregious violations, the Administrator may assess a separate penalty for each instance of a violation. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0176 Determination of Penalty – Failure to Notify Employees of Advance Notice. The Administrator, after considering the related facts, may assess a penalty not to exceed $1000 for each violation of the employer’s failure to give notification by posting to employees of advanced notice. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0180 Determination of Penalty – Relating to Red Warning Notice. The Administrator, after considering the related facts, shall assess a penalty of not less than $100 and not more than $5,000 for each violation of the restrictions imposed by a Red Warning Notice (See OAR 437-001-0096(3) or (4)). Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCD Admin. Order, Safety 5-1978, f. 6-22-78 ef. 8-15-78. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0171 42 437-001-0180 Oregon Administrative Rules Oregon Occupational Safety and Health Division DETERMINATION OF PENALTY – RELATING TO FIELD SANITATION / RELATING TO VIOLATIONS WHICH HAVE NO PROBABILITY AND SEVERITY 437-001-0201 Determination of Penalty – Relating to Field Sanitation. The Administrator shall assess a civil penalty of not less than $250 and not more than $2,500 to employers of workers who are engaged in field activities for the growing and harvesting of food crops intended for human consumption, who substantially fail to comply with OAR 437-004-1110 in Division 4, Agriculture. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCD Admin. Order, Safety 9-1986, f. 10-7-86 ef. 12-1-86. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-0203 Determination of Penalty – Relating to Violations Which Have No Probability and Severity. (1) Safety and Health Protection on the Job Poster. If the employer has not displayed the poster, a minimum penalty of $100 may be assessed. (2) Annual Summary – If an employer fails to post the summary portion of the OSHA 300 Form no later than February 1 of the year following the year covered by the records and keep it posted until April 30 in accordance with 437-001-0700(17)(e), a minimum penalty of $200 may be assessed. (3) Citation – If an employer fails to post the citation after receipt, a minimum penalty of $200 may be assessed. (4) OSHA 300 and DCBS 801 Forms – If the employer does not maintain the Log and Summary of Occupational Injuries and Illnesses, OSHA 300 Form, and the Supplementary Record, DCBS Form 801 or equivalent, a minimum penalty of $100 may be assessed for each OSHA form not maintained. (5) Access to Records – If the employer fails upon request to provide records for inspection and copying by any authorized representative of OR-OSHA or by any employee, former employee, or authorized representative of employees, a minimum penalty of $100 may be assessed for each form not made available. (6) Flush Toilets/Warm Water Hand Washing Facilities – If an employer fails to provide flush toilets or warm water hand washing facilities on a construction site according to OAR 437-003-0020 in OAR 437, Division 3, Construction, a penalty of not less than $200, nor more than $2,500, shall be assessed. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.086. Hist: APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 9-1995, f. 11/29/95, ef. 11/29/95. 437-001-0201 43 OR-OSHA Admin. Order 11-2001, f. 9/14/01, ef. 1/1/02. OR-OSHA Admin. Order 6-2003, f. 11/26/03, ef. 11/26/03. OR-OSHA Admin. Order 9-2008, f. 9/19/08, ef. 1/1/09. 437-001-0203(6) CITATION AND NOTICE OF PENALTY Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0205 Citation and Notice of Penalty. (1) If the Division concludes from the review of an inspection report that a rule or order was violated, a citation will be issued to the employer which shall: (a) State the name of the employer, place of employment, and date of inspection. If the violation occurred on other than the inspection date, the date of the violation will be included; (b) Describe factually the nature and location of the violation; (c) State the type of violation, if other than general; (d) Identify the rule or order violated; (e) Fix a time for the correction of each violation not corrected at the time of inspection; (f) State the penalty for each violation; (g) Identify which, if any, penalties are suspended; (h) State the total dollar amount of assessed penalties; (i) Inform the employer of the right to appeal the citation, the civil penalty or the period of time fixed for correction of the violation to the Board; (j) Inform affected employees of their right to appeal the time fixed for correction of the violation; and (k) Notify the employer that the citation becomes a final order if an appeal is not filed within 30 days of receipt of the citation by the employer. (2) Citations and notices of penalties will be served on employers by certified mail, in person, or any method acceptable to the employer. (3) Each employee representative shall be sent a copy of all citations and notices of penalties issued. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stat. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 10-2007, f. 12-3-07, ef. 1-1-08. OR-OSHA Admin. Order 2-2009, f. 1/27/09, ef . 2/3/09. (1) - (3) 44 437-001-0205 Oregon Administrative Rules Oregon Occupational Safety and Health Division EMPLOYER RESPONSE TO CITATION & NOTICE OF PENALTY / PAYMENT OF PENALTIES / PENALTY FOR FALSIFICATION 437-001-0215 Employer Response to Citation and Notice of Penalty. (1) After receipt of a citation, the employer shall: (a) Promptly post the citation for employees information for 3 days or until the violation is corrected, whichever occurs last; (b) Assure that any amendments or withdrawals to a citation are posted with the original citation for 3 days or until the violation is corrected, whichever occurs last; (c) Correct each violation by the date ordered; and (d) If no appeal is filed, remit any penalty by the 31st calendar day following receipt of the citation. (2) The above requirements shall not limit an employer’s appeal rights. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stat. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 10-2007, f. 12-3-07, ef. 1-1-08. 437-001-0220 Payment of Penalties. (1) All civil penalties become due and owing after the citation becomes a final order. (2) If payment is not received within 20 days after the order becomes final, it may be docketed as a judgment as provided by ORS 654.086(3). Stat. Auth.: ORS 654.025(2) and 656.726(4). Stat. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 10-2007, f. 12-3-07, ef. 1-1-08. 437-001-0225 Penalty for Falsification. (1) An employer who knowingly makes any false statement, representation or certification regarding the correction of a violation shall be assessed a civil penalty of not less than $100 and not more than $2,500. 437-001-0215(1) 45 437-001-0225(1) PENALTY FOR FALSIFICATION / CORRECTION OF VIOLATION / ABATEMENT VERIFICATION Oregon Administrative Rules Oregon Occupational Safety and Health Division (2) An employer who knowingly makes any false statement, representation or certification regarding the correction of a violation, and that violation is found to have caused or materially contributed to the death of any employee, shall be penalized according to the provisions of ORS 654.991(3). In such cases, the Administrator shall contact the appropriate local district attorney for assistance and possible prosecution. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0230 Correction of Violation. (1) The employer must correct any violation the employer has been ordered to correct except when: (a) The abatement date of an other than serious violation has been appealed; (b) A stay of the correction date has been ordered by the Hearings Division on an appealed serious violation; (c) An extension has been granted in accordance with OAR 437-001-0240. (2) If the violation is corrected at the time of inspection, the correction shall be noted in the Compliance Officer’s inspection report. However, such correction shall not provide immunity from the issuance of a citation for the violation. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stat. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0231 Abatement Verification. (1) When an employer receives a citation for a violation of the Oregon Safe Employment Act, the employer must notify the appropriate OR-OSHA field office of the corrective action taken to comply with each cited violation by Letter of Corrective Action. Such notification must occur within 10 calendar days after the last abatement date on the citation. 437-001-0225(2) 46 437-001-0231(1) Oregon Administrative Rules Oregon Occupational Safety and Health Division ABATEMENT VERIFICATION / FAILURE TO CORRECT VIOLATION / EXTENSION OF CORRECTION DATE - APPLICATION (2) When the compliance officer notes that violations are complied with at the time of the inspection, abatement verification for those violations is not required. (3) The employer’s verification that abatement is complete must include, for each cited violation, the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-0235 Failure to Correct Violation. If a subsequent inspection reveals that a violation was not corrected, or was only partially corrected, by its correction date, a notice shall be issued to the employer which: (1) Gives the date and number of the citation which first alleged the violation; (2) Identifies the uncorrected violation and the date by which it was ordered to be corrected; (3) Advises the employer of the nonabatement days accumulated to the date of notice; (4) Advises the employer that daily penalties shall continue to accumulate until the violation is corrected; and (5) Notifies the employer to advise the indicated field office immediately upon correction of the violation. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-0240 Extension of Correction Date – Application. (1) An employer may apply for an extension of the date for correcting a violation. (2) An application for extension of correction date shall be in writing to the OR-OSHA Division, 350 Winter St. NE, Salem, Oregon 97310, or received by any office of the Department. (3) The application for extension must include: (a) The name and address of the employer; 437-001-0231(2) 47 437-001-0240(3)(a) EXTENSION OF CORRECTION DATE APPLICATION / EXTENSION OF CORRECTION DATE - DECISION Oregon Administrative Rules Oregon Occupational Safety and Health Division (b) The location of the place of employment; (c) The citation number; (d) The item number of the violation for which the extension is sought; (e) The reason for the request; (f) Any interim steps being taken to safeguard employees against the cited hazard during the requested extended correction period; (g) The date by which the employer proposes to complete the correction; and (h) A statement that a copy of the request for extension has been posted as required by OAR 437-001-0275(2) or for at least 10 days, whichever is longer, and, if appropriate, served on the authorized representative of affected employees, and certification of the date upon which such posting or service was made. (i) Any employee who feels a posted request for an extension is unjust may contact the Administrator for a review of the matter. (4) The application shall be postmarked or received by the Department no later than the correction date of the violation for which the extension is requested. For good cause, the Administrator may approve exceptions to this rule. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 10-2007, f. 12-3-07, ef. 1-1-08. 437-001-0245 Extension of Correction Date – Decision. (1) A request for extension of the correction date shall be granted or denied on the basis of information in the application, information from employees and any other relevant information. (2) If the request for extension is granted, a notice of extension of correction date shall be sent to the employer. The notice shall: (a) Include notice of the right of affected employees or their representative to appeal the extension; and 437-001-0240(3)(b) 48 437-001-0245(2)(a) Oregon Administrative Rules Oregon Occupational Safety and Health Division EXTENSION OF CORRECTION DATE – DECISION / REVOCATION / HEARING ON THE APPLICATION (b) Be posted for employees information until the violation is corrected. (3) If the request for extension is denied, the Administrator shall, with reasonable promptness, inform the employer in writing of the reasons for such denial, and of the employees and employer’s rights to appeal the Administrator’s decision. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0250 Extension of Correction Date – Revocation. The Administrator may, for good cause, revoke an extension of correction date. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0251 Extension of Correction Date – Hearing on the Application. Affected employees or the employee representative shall be given the opportunity to request a hearing on an application for an extension of the correction date. (1) Requests for hearings shall be made in the following manner; (a) The request shall be made within 10 days of posting the application; (b) A request shall be made to the Administrator and shall contain: (c) A concise statement of facts showing how the employee(s) would be affected by the extension of correction date; (d) A statement opposing the extension of the correction date and a concise summary of the evidence supporting the opposition; and (e) Any views or arguments on any issue of fact or law presented. (2) Notice of hearing shall be given by the Administrator to affected persons and shall contain: (a) Time, place and nature of hearing; (b) Legal authority under which the hearing will be held; and (c) The issues to be discussed. 437-001-0245(2)(b) 49 437-001-0251(2)(c) EXTENSION OF CORRECTION DATE – HEARING ON THE APPLICATION / AMENDMENT, REISSUE OR WITHDRAWAL OF CITATION Oregon Administrative Rules Oregon Occupational Safety and Health Division (3) The hearing shall be conducted by the Administrator in a manner which will allow all affected persons to submit information on the application. (4) At any hearing conducted to determine the merits of an extension request, the person requesting the extension of compliance time shall have the burden of proof regarding the request. (5) The Administrator shall evaluate all information submitted at the hearing and make a determination on the merits of the application. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. WCD Admin. Order, Safety 3-1983, f. 1-31-83, ef. 2-1-83. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0265 Amendment, Reissue or Withdrawal of Citation. (1) When the Division identifies an error or errors in the citation, the Administrator may, for good cause, amend, reissue or withdraw a citation provided: (a) Such action will not reduce the occupational safety and health protection of affected employees; (b) No appeal has been filed with the Board to contest the citation; (c) The time for filing an appeal has not expired; and (d) The employee representative, if any, has been notified of the proposed amendment. (2) The employer receiving an amendment or withdrawal shall post the document as required by OAR 437-001-0275(2). (3) An amendment or withdrawal of an appealed citation or order shall be made in accordance with the Board's rules (OAR 438) for contested cases. The administrator shall notify the employee representative of any proposed settlement or withdrawal made according to OAR 438. (4) Any withdrawal, or amendment of an appealed citation that reduces the penalty or extends the correction times of an alleged serious or willful violation shall not be made without written approval of the Director. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975 f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 6-2003, f. 11/26/03, ef. 11/26/03. 437-001-0251(3) 50 437-001-0265(4) Oregon Administrative Rules Oregon Occupational Safety and Health Division REQUESTING AN APPEAL AND AN INFORMAL CONFERENCE 437-001-0255 Requesting an Appeal and an Informal Conference. (1) In order to appeal a citation, a written request for appeal must be filed with the Department of Consumer and Business Services and must be directed to the Oregon Occupational Safety and Health Division at 350 Winter St. NE, Room 430, Salem, Oregon 97310, or with any permanently staffed office of the Workers’ Compensation Board or Oregon OSHA. The appeal must be filed within 30 days of receiving a citation, notice or order, if the employer intends to contest any proposed assessment of civil penalty, the time fixed for correction of a violation or the violative condition cited. The request must clearly state the item(s) to be contested. An employee appeal of the time fixed for correction of a violation must also be filed within 30 days of the employer’s receipt of the citation, notice or order. (2) An informal conference may be requested by either the employer or employee and used to discuss informally with Oregon OSHA any matter affecting occupational safety and health in the place of employment including, but not limited to: Clarify statements of observed violations; Discuss safety and health requirements; Discuss abatement dates; Explain the penalty system; Improve employer/employee understanding of the Oregon Safe Employment Act; Correct errors; Narrow issues, or Negotiate a settlement agreement with an employer to resolve disputed citations that have not become a final order. Notwithstanding any other rule in this division, proposed civil penalties may be reduced as part of a settlement agreement resolving disputed claims. (3) A request for an informal conference alone will not be considered as an appeal to the Workers’ Compensation Board (although the same document may both request an informal conference and serve notice of an appeal, provided that it includes the required elements). An informal conference concerning a citation will not extend the 30 days allowed for filing an appeal with the Board. (4) Informal conferences scheduled to negotiate settlement agreements require that the employer notify employees or their representatives of the opportunity to attend. (5) When both a request for an informal conference and an appeal have been submitted, the appeal request will be forwarded to the Workers’ Compensation Board to be scheduled for a formal hearing if issues are not resolved at the informal conference. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0255 51 OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. OR-OSHA Admin. Order 10-2007, f. 12-3-07, ef. 1-1-08. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. (1) - (5) DISCRETION TO PREVENT A MANIFEST INJUSTICE Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0270 Discretion To Prevent a Manifest Injustice. (1) To prevent a manifest injustice, the Administrator, at the Administrator’s own discretion or upon request from the Division or an adversely affected person, may vacate or amend a Division citation, notice or order. (2) If the Administrator proposes to vacate or amend a Division citation, notice or order, an opportunity to be heard will be given to persons, including affected employees, whose rights may be affected. (3) All requests for reconsideration based on a manifest injustice shall contain a statement indicating the following: (a) The request has been posted as required by OAR 437-001-0275(2); (b) The request has been served on the authorized representative of affected employees, if appropriate; (c) The date the request was posted or service was made; and (d) All affected employees have been advised of their right to comment. (4) No decision shall be made on a manifest injustice request until 10 days after the date of posting or service. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. WCD Admin. Order, Safety 3-1983, f. 1-31-83, ef. 2-1-83. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 6-2003, f. 11/26/03, ef. 11/26/03. OR-OSHA Admin. Order7-2006, f. 9/6/06, ef. 9/6/06. (1) - (4) 52 437-001-0270 Oregon Administrative Rules Oregon Occupational Safety and Health Division POSTING REQUIREMENTS 437-001-0275 Posting Requirements. (1) Where OAR 437, Division 1, requires an employer to inform affected employees by posting, copies of the unedited notice or other document shall be posted promptly upon receipt in one or more places where it will readily be observable by affected employees (for example, a location where employees report each day or at a location from which the employees operate to carry out their activities). (2) The following documents shall be posted as specified: (a) The Safety and Health Protection on the Job poster shall be posted permanently; (b) A copy of any citation received by the employer shall be posted for 3 days or until the violation(s) is corrected, whichever occurs last; (c) A copy of any amendment or withdrawal of a citation shall be posted with the original citation for 3 days or until the violation(s) is corrected, whichever occurs last; (d) A copy of any notice of extension of correction date shall be posted until the violation(s) is corrected; (e) A copy of any settlement shall be posted for 10 days or until all violations have been corrected, whichever occurs last; (f) A copy of any Notice of Hearing issued by the Hearings Division shall be posted until the hearing date; (g) A copy of the variance application shall be posted until a final variance order is issued and posted; (h) A copy of any variance order shall be posted for 20 days; (i) A copy of any interim order relating to a variance shall be posted as long as it is in effect; (j) A copy of any request for extension of correction date shall be posted until the Administrator informs the employer the extension has been granted or denied; (k) A copy of a request for reconsideration of a citation, notice or order under the manifest injustice provision of OAR 437-001-0270 shall be posted along with the citation until the request has been granted or denied; and (l) A copy of any feasibility determination relating to engineering controls shall be posted for 20 days for review by employees. 437-001-0275 53 (1) – (2)(l) POSTING REQUIREMENTS / POSTING ON SELECTED MULTI-EMPLOYER JOBSITES Oregon Administrative Rules Oregon Occupational Safety and Health Division (m) A Field Sanitation Notice (available from the Department of Consumer and Business Services, OR-OSHA Division) shall be posted permanently by affected employers engaged in the production of food crops intended for human consumption. (See OAR Chapter 437, Division 4, Agriculture, OAR 437-004-1110(8)). (n) An informational notice of the farm worker camp registration provided by the Department. (3) If the employer fails to comply with the requirements of OAR 437-001-0275(2), the Administrator may assess a civil penalty of not more than $1,000 for each violation. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 315.164, 654.086, 658.750, 658.755, 658.780, 658.785, 658.805, 658.810 and 658.825. 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. WCD Admin. Order, Safety 3-1983, f. 1-31-83, ef. 2-1-83. WCD Admin. Order, Safety 9-1986, f. 10-7-86, ef. 12-1-86. APD Admin. Order 5-1988, f. 5-16-88, ef. 5-16-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 9-1995, f. 11/29/95, ef. 11/29/95. OR-OSHA Admin. Order 10-1995, f. 11/29/95, ef. 11/29/95. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-0280 Posting on Selected Multi-Employer Jobsites. At a multiemployer jobsite, the owner or the owner’s designated prime contractor may be directed to post a notice in a conspicuous manner in a sufficient number of locations throughout the jobsite to reasonably inform the Compliance Officer and the affected employees of the following: (1) The name and usual jobsite location of each employer and employer representative, on each work shift, who is designated to accompany the Compliance Officer during a safety or health inspection of the jobsite; and (2) The employee’s right to report a hazard to the employer’s designated representative. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0275(2)(m) 54 437-001-0280(2) Oregon Administrative Rules Oregon Occupational Safety and Health Division FORM & CONTENT OF A COMPLAINT / DIVISION ACTION ON COMPLAINTS 437-001-0285 Form and Content of a Complaint. Any person may complain to the Administrator of possible violations of any statute or of any lawful regulation, rule, standard or order affecting employee safety or health at a place of employment. A complaint, whether oral or written, should specify: (1) The name of the employer; (2) The location of the place of employment; (3) Where the condition or practice occurs in the place of employment; (4) The nature and frequency of the hazard; (5) The number of employees affected by the condition or practice; (6) The way in which the complainant is affected by the condition or practice; and (7) Whether the complainant desires the complainant’s name and address to be kept confidential. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0290 Division Action on Complaints. (1) At the complainant’s request in writing, their identity shall be kept in confidence. Any employee of the Department who fails to maintain that confidence is subject to disciplinary action. (2) Complaint inspections shall be scheduled as provided for in OAR 437-001-0055(3). (3) Any person making a complaint to the Division shall receive written notice of the Division’s action if the complainant’s address is provided. (4) Any complainant who feels that the complaint was not adequately investigated by the Division may contact the Administrator for a review of the matter. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0285 55 437-001-0290(4) DISCRIMINATION COMPLAINT Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0295 Discrimination Complaint. (1) An employee or prospective employee may file a complaint as provided in ORS 654.062(5) if the employee believes discrimination has occurred because: (a) The employee opposed a practice forbidden by, or engaged in a practice provided for, in the Oregon Safe Employment Act; or (b) The employee refused in good faith to be subjected to imminent danger provided the employer refused to correct the hazard or it was not possible to notify the employer of the danger and the employee has notified the OR-OSHA Division or other appropriate agency, of the hazard, unless excused on the basis of insufficient time or opportunity as stated in OAR 839-003-0025, Bureau of Labor and Industries rules. (2) The complaint shall be filed with the Commissioner of the Bureau of Labor and Industries, 800 NE Oregon Street, Portland, Oregon 97232, within 90 days after the employee had reasonable cause to believe discrimination occurred. The complaint may also be filed in any Circuit Court of the State of Oregon. (3) The complaint may also be filed with the U.S. Department of Labor, 3056 Federal Office Building, Seattle, Washington 98174, as stated in 29 CFR 1977.15. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 7-2002, f. 11/15/02, ef. 11/15/02. OR-OSHA Admin. Order 8-2007, f. 12-3-07, ef. 12-3-07. (1) – (3) 56 437-001-0295 Oregon Administrative Rules Oregon Occupational Safety and Health Division APPLICATION FOR A VARIANCE 437-001-0400 Application for a Variance. (1) Any employer may apply for a variance from any rule which specifically affects working conditions. This application may be submitted: (a) On a form provided by Oregon OSHA; or (b) In any written form that includes all information required by OAR 437-001-0400(2) and (3). (2) An application for a variance must contain: (a) The name and address of the employer; (b) The address and location of the place of employment; (c) The rule, identified by number, from which the variance is sought; (d) The type of variance desired (see OAR 437-001-0015); (e) The means by which employees will be protected from the hazard until final action is taken on the variance request; (f) A description of the means proposed to be used to provide employment which is as safe and healthful as that obtained by compliance with the rule; (g) Certification that all affected employees have been informed of the application and of their right to comment on it by: (A) Giving a copy of the variance application to the authorized employee representative; (B) Posting a statement giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted (or in lieu of such summary, the posting of the application itself); and (C) By other appropriate means. (h) A description of how employees have been informed of the application and of their right to comment on it to the Administrator, Oregon OSHA, 350 Winter St. NE, Salem, Oregon, before it becomes final. (i) A statement of whether the employer has previously filed application for a similar variance with any state or federal agency. (3) If the employer is applying for a research variance, the application must contain the following additional information: (a) The purpose and contribution of the intended research; 437-001-0400 57 (1) - (3)(a) APPLICATION FOR A VARIANCE / INTERIM ORDER RELATING TO A VARIANCE Oregon Administrative Rules Oregon Occupational Safety and Health Division (b) A discussion of the research methods; (c) The research schedule, including the projected completion date; (d) A description of the hazards to which employees may be exposed and the steps to be taken to protect the employees safety and health; (e) Biographical information to indicate the competence of the research staff; (f) Assurances that the project will be funded adequately; and (g) Assurances that Oregon OSHA will be given a copy of the research report prepared under the variance. However, no trade secret, patented or patentable material or data need be submitted by the employer. (4) If the employer is applying for a temporary variance, the application must contain the following additional information: (a) A statement of facts why the applicant is unable to comply with the rule by the effective date which is supported by representations from qualified persons having firsthand knowledge of the facts, and include data on: (A) Unavailability of professional or technical personnel; or (B) Unavailability of materials and equipment needed; or (C) Inability to complete the construction or alteration of facilities by the effective date. (b) An effective program including a timetable for complying with the rule; and (c) The specific steps taken to protect employees against the hazard. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78; WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0405 Interim Order Relating to a Variance. (1) An employer applying for a variance may request an interim order to be effective until final action is taken on the variance application. The request for an interim order: (a) May be included in the variance application; 437-001-0400(3)(b) 58 437-001-0405(1)(a) Oregon Administrative Rules Oregon Occupational Safety and Health Division INTERIM ORDER RELATING TO A VARIANCE / ADMINISTRATIVE ACTION ON VARIANCE APPLICATION (b) Must include all information required by OAR 437-001-0400(2); and (c) Must state the reasons why the interim order should be granted. (2) The Administrator, or designee, will decide whether to issue an interim order on the basis of information provided in the application. (3) If an interim order is granted, it will be sent to the employer. The employer must inform affected employees by posting a copy of the interim order for as long as the order is in effect. (4) If an interim order is granted, the action will be published in the manner required by OAR 437-001-0410(1). (5) If the interim order is denied, the employer will be given prompt written notice of, and the reasons for, the denial. (6) An interim order or a written denial must include notice of the employer’s and employees’ appeal rights as contained in ORS 654.056 and OAR 438-085-0006 through 438-085-0870. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0410 Administrative Action on Variance Application. (1) After a variance request is determined to be complete and procedurally adequate, as provided in OAR 437-001-0400, Oregon OSHA will publish the request for one day in at least one daily newspaper with general circulation throughout Oregon. The notice will include: (a) The name of the applicant; (b) The rule, also identified by number, from which the variance is sought; (c) A brief description of the variance request; (d) Notice of opportunity for public comment and hearing; (e) Information on how interested persons may learn of Oregon OSHA’s decision on the variance application; and 437-001-0405(1)(b) 59 437-001-0410(1)(e) ADMINISTRATIVE ACTION ON VARIANCE APPLICATION / HEARINGS FOR VARIANCE APPLICATIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division (f) The address of the Oregon OSHA office from which further information may be obtained. (2) Oregon OSHA may conduct an on-site review of the equipment or processes involved in the requested variance. (3) A variance, if granted, will have no retroactive effect. It will not be the basis for amending or withdrawing a citation. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order 33-1974, f. 9-5-74, ef. 9-26-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0411 Hearings for Variance Applications. Affected employers or employees will be given the opportunity to request a hearing on an application. (1) Request for hearings must be made in the following manner: (a) The request must be made within 30 days of publication of the application; (b) A request must be made to Oregon OSHA and must contain: (A) A concise statement of facts showing how the employer or employee would be affected by the relief applied for; (B) A statement opposing any or all portions of the application, and a concise summary of the evidence supporting each item opposed; and (C) Any views or arguments on any issue of fact or law presented. (2) A notice of hearing will be given to affected persons that contains: (a) Time, place and nature of hearing; (b) Legal authority under which the hearing will be held; and (c) The issues to be discussed. (3) The hearing will be conducted in a manner that will allow all affected persons to submit information on the application. 437-001-0410(1)(f) 60 437-001-0411(3) Oregon Administrative Rules Oregon Occupational Safety and Health Division HEARINGS FOR VARIANCE APPLICATIONS / CRITERIA FOR VARIANCE APPROVAL / DECISION ON VARIANCE REQUEST (4) All information submitted will be evaluated at the hearing and a determination made on the merits of the application. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats Implemented: ORS 654.001 through 654.295. Hist: WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0415 Criteria for Variance Approval. (1) An application for a permanent variance will be granted only if the applicant demonstrates, and Oregon OSHA determines, which includes the consideration of employee or the public comments, that the conditions, practices, operations or processes proposed to be used by the applicant shall provide employment which is as safe and healthful as that obtained by compliance with the rule. (2) An application for a temporary variance will be granted only if the applicant demonstrates, and Oregon OSHA determines, including consideration of employee or public comments, that the applicant is unable to comply with a new rule by its effective date, that the applicant has an effective program for complying with the rule by the agreed upon timetable and that all available steps are being taken in the interim to safeguard employees against the hazard covered by the rule. (3) An application for a research variance will be granted only if the applicant demonstrates, and Oregon OSHA determines, including consideration of employee or public comments, that the conditions, practices, operations or processes used adequately safeguard employees against the hazards covered by the rule, while demonstrating or validating new or improved safety or health techniques or products. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats Implemented: ORS 654.001 through 654.295. Hist: WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0420 Decision on Variance Request. (1) If a variance is granted, an order of variance will be issued. The order will include: (a) The name of the employer to whom the variance is granted; (b) The place of employment where the variance is applicable; (c) The type of variance granted; (d) The specific rule to which the variance applies; 437-001-0411(4) 61 437-001-0420(1)(d) DECISION ON VARIANCE REQUEST Oregon Administrative Rules Oregon Occupational Safety and Health Division (e) The alternative methods or safeguards to be used by the employer while the variance is in effect; (f) Notice that the employer may be cited for any violation of the conditions established by the variance; (g) Information of employees’ right to appeal the variance decision; and (h) Information that if no appeal is filed within 30 days of receipt of the order, the variance approval becomes final and subject to review only as specified in OAR 437-0010430. (2) If a variance is denied, a notice of denial will be issued. The notice will include: (a) The reasons for the denial; (b) Employer and employees appeal rights; (c) Information that if no appeal is filed within 30 days of receipt of the notice, the variance denial becomes a final decision without affecting the employer’s right to submit another application; and (d) Information advising the employer that a compliance inspection may be made within 30 days. (3) A copy of any variance order or denial must be posted for 20 days. (4) A variance that has been denied, or that has expired, may be followed by a compliance inspection within 30 days. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.326, 654.412 through .423, 654.991. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 10-2009, f. 10/5/09, ef. 10/5/09. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. (1)(e) – (4) 62 437-001-0420 Oregon Administrative Rules Oregon Occupational Safety and Health Division EMPLOYER’S DUTY TO MEET VARIANCE TERMS / MODIFICATION OR REVOCATION OF A VARIANCE 437-001-0425 Employer’s Duty to Meet Variance Terms. (1) A variance is not effective until the employer has complied with its terms and requirements. (2) An employer may be cited for violating the terms of a variance. (See ORS 654.022) Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0430 Modification or Revocation of a Variance. (1) A variance may be modified or revoked after it has been in effect 6 months or longer upon: (a) Receiving a request from the employer, an affected employee or an employee representative containing: (A) The name and address of the applicant; (B) A description of the relief which is sought; (C) A statement setting forth with particularity the grounds for relief; (D) If the applicant is an employer, a certification that the applicant has informed affected employees of the application by: (i) Giving a copy to their authorized representative; (ii) Posting at the place or places where notices to employees are normally posted, a statement giving a summary of the application and specifying where a copy of the full application may be examined (or, in lieu of the summary, posting the application itself); and (iii) Other appropriate means. (E) If the applicant is an affected employee, they must provide a copy of the application to the employer; and (F) Any request for a hearing, as provided for in these rules. (b) Notification and confirmation that the alternative methods or safeguards required by the variance are not fully complied with; or 437-001-0425(1) 63 437-001-0430(1)(b) MODIFICATION OR REVOCATION OF A VARIANCE Oregon Administrative Rules Oregon Occupational Safety and Health Division (c) An Oregon OSHA review. (2) Oregon OSHA will post the proposed modifications or revocations on the Oregon OSHA web site at www.orosha.org for 30 days. The posting shall include: (a) The name of applicant; (b) The rule, also identified by number, from which the variance had been granted; (c) A brief description of the variance and why relief is sought; (d) Notice of opportunity for public comment and hearing and that a request for hearing will be made within 20 days of publication; (e) Information on how interested persons may learn of Oregon OSHA’s decision on the variance; and (f) The address of the Oregon OSHA office from which further information may be obtained. (3) Oregon OSHA may conduct an on-site review of the equipment or processes involved in the proposed, revoked or modified variance. (4) The employer and affected employees will be advised in writing of modification or revocation of the variance. The modification or revocation order will state: (a) The name and address of the employer; (b) The address and location of the place of employment involved; (c) The rule, identified by number, from which the variance was granted; (d) The type of variance issued; (e) The reasons for modification or revocation of the variance; and (f) The employer’s and affected employees appeal rights. (5) Any request for a hearing will be made within 30 days of publication and must include a short and plain statement of: (a) How the proposed modification or revocation would affect the requesting party; and (b) What the requesting party would seek to show on the subjects or issues involved. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. (1)(c) – (5)(b) 64 WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 6-2003, f. 11/26/03, ef. 11/26/03. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0430 Oregon Administrative Rules Oregon Occupational Safety and Health Division EFFECT OF A VARIANCE GRANTED BY THE U.S. SECRETARY OF LABOR 437-001-0435 Effect of a Variance Granted by the U.S. Secretary of Labor. (1) If an employer requesting a variance from an Oregon rule submits proof that a variance from an equivalent federal rule has been granted by the U.S. Secretary of Labor, the federal variance will be accepted in lieu of the information required by OAR 437-001-0400, Application for a Variance. (2) If an employer is cited for violating an Oregon rule equivalent to a federal rule for which a variance has been granted by the U.S. Secretary of Labor, and all conditions of that variance are being met, the Administrator will consider the federal variance as a possible defense against the citation. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0435 65 (1) - (2) Oregon Administrative Rules Oregon Occupational Safety and Health Division 66 Oregon Administrative Rules Oregon Occupational Safety and Health Division VOLUNTARY COMPLIANCE CONSULTATIVE SERVICES / APPLICATION FOR CONSULTATIVE SERVICES 437-001-0450 Voluntary Compliance Consultative Services. (1) The Administrator shall provide consultative services to assist employers in preventing occupational injury and disease, whatever the cause. (2) Consultative services may include providing technical information, but shall not intrude into the business of engineering firms or professional consultants. (3) When federal funds are utilized to conduct consultative services, the provisions contained in 29 CFR 1908, Consultation Agreement, shall apply. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 1-1991, f. 1/28/91, ef. 1/28/91 (temp). OR-OSHA Admin. Order 5-1991, f. 3/18/91, ef. 3/18/91 (perm). 437-001-0455 Application for Consultative Services. Employers may make a verbal or written request for consultative services. A request must: (1) Be made by an employer to a representative of the Division; (2) Identify the employer and the location where the consultation is desired; and (3) Define the specific problem or hazard, or other reason for the request. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. 437-001-0450(1) 67 437-001-0455(3) CONSULTATION Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0460 Consultation. When a consultant responds to a request for a consultative service, the employer shall be advised: (1) Of the purpose of the visit; (2) Of the Administrative Rules and Standard Operating Procedures pertaining to consultative services; and (3) That the consultation need not be limited to the specific problems or hazards contained in the request for consultative service, but may also include, at the request of the employer, assistance in developing a plan to correct hazardous conditions, and other services including but not limited to: (a) Health and safety program assessments; (b) Training on specific health and safety issues; and (c) Other assistance designed to promote more effective workplace health and safety programs. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 1-1991, f. 1/28/91, ef. 1/28/91 (temp). OR-OSHA Admin. Order 5-1991, f. 3/18/91, ef. 3/18/91 (perm). (1) – (3)(c) 68 437-001-0460 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDING WORKPLACE INJURIES AND ILLNESSES 437-001-0700 Recording Workplace Injuries and Illnesses. (1) Purpose. This rule requires employers to record work-related fatalities, injuries and illnesses. Note: Recording a work-related injury, illness, or fatality does not assign fault to anybody, does not prove the violation of an OSHA rule, nor establish the employee’s eligibility for workers’ compensation or other benefits. (2) Scope. This standard covers all employers covered by the Oregon Safe Employment Act, except for the exemptions below. (3) Partial Exemptions. (a) If your company never had more than ten (10) employees during the last calendar year, including temporary employees, you do not need to keep Oregon OSHA injury and illness records unless the Director informs you in writing that you must keep records. The exemption for size is based on the number of employees in the entire company within the state of Oregon. (b) If your company had more than ten (10) employees at any time during the last calendar year, you must keep Oregon OSHA injury and illness records unless your business is in a specific low hazard retail, service, finance, insurance or real estate industry in Table 1. If so, you do not need to keep Oregon OSHA injury and illness records unless the government asks you to keep the records under 437-001-0700(22). (c) If one or more of your company’s establishments are classified in a nonexempt industry, you must keep Oregon OSHA injury and illness records for all of such establishments unless your company is exempted because of size under 437-0010700(3)(a). If a company has several business establishments engaged in different classes of business activities, some of the company’s establishments may be required to keep records, while others may be exempt. (4) Alternate or Duplicate Records. If you create records to comply with another government agency’s injury and illness recordkeeping requirements, those records meet Oregon OSHA’s recordkeeping requirements if Oregon OSHA accepts the other agency’s records under a memorandum of understanding with that agency, or if the other agency’s records contain the same information as this standard requires you to record. Contact Oregon OSHA for help in determining if your records meet Oregon OSHA’s requirements. 437-001-0700 69 (1) – (4) RECORDING WORKPLACE INJURIES AND ILLNESSES Oregon Administrative Rules Oregon Occupational Safety and Health Division Table 1 - Exempt Industries Employers do not need to keep Oregon OSHA injury and illness records for any establishment in the following North American Industry Classification System (NAICS), unless Oregon OSHA or the Department of Consumer and Business Services asks them in writing to do so. NAICS Industry NAICS Industry Code Description Code Description 4412 Other Motor Vehicle Dealers 5411 Legal Services 4431 Electronics and Appliance Stores 5412 Accounting, Tax Preparation, Bookkeeping, and 4461 Health and Personal Care Stores Payroll Services 4471 Gasoline Stations 5413 Architectural, Engineering, and Related Services 4481 Clothing Stores 5414 Specialized Design Services 4482 Shoe Stores 5415 Computer Systems Design and Related Services 4483 Jewelry, Luggage, and Leather Goods Stores 5416 Management, Scientific, and Technical 4511 Sporting Goods, Hobby, and Musical Instrument Consulting Services Stores 5417 Scientific Research and Development Services. 4512 Book, Periodical, and Music Stores 5418 Advertising and Related Services 4531 Florists 5511 Management of Companies and Enterprises 4532 Office Supplies, Stationery, and Gift Stores 5611 Office Administrative Services 4812 Nonscheduled Air Transportation 5614 Business Support Services 4861 Pipeline Transportation of Crude Oil 5615 Travel Arrangement and Reservation Services 4862 Pipeline Transportation of Natural Gas 5616 Investigation and Security Services 4869 Other Pipeline Transportation 6111 Elementary and Secondary Schools 4879 Scenic and Sightseeing Transportation, Other 6112 Junior Colleges 4885 Freight Transportation Arrangement 6113 Colleges, Universities, and Professional Schools 5111 Newspaper, Periodical, Book, and Directory 6114 Business Schools and Computer and Publishers Management Training 5112 Software Publishers 6115 Technical and Trade Schools 5121 Motion Picture and Video Industries 6116 Other Schools and Instruction 5122 Sound Recording Industries 6117 Educational Support Services 5151 Radio and Television Broadcasting 6211 Offices of Physicians 5172 Wireless Telecommunications Carriers (except 6212 Offices of Dentists Satellite) 6213 Offices of Other Health Practitioners 5173 Telecommunications Resellers 6214 Outpatient Care Centers 5179 Other Telecommunications 6215 Medical and Diagnostic Laboratories 5181 Internet Service Providers and Web Search 6244 Child Day Care Services Portals 7114 Agents and Managers for Artists, Athletes, 5182 Data Processing, Hosting, and Related Services Entertainers, and Other Public Figures 5191 Other Information Services 7115 Independent Artists, Writers, and Performers 5211 Monetary Authorities—Central Bank 7213 Rooming and Boarding Houses 5221 Depository Credit Intermediation 7221 Full-Service Restaurants 5222 Nondepository Credit Intermediation 7222 Limited-Service Eating Places 5223 Activities Related to Credit Intermediation 7224 Drinking Places (Alcoholic Beverages) 5231 Securities and Commodity Contracts 8112 Electronic and Precision Equipment Repair and Intermediation and Brokerage Maintenance 5232 Securities and Commodity Exchanges 8114 Personal and Household Goods Repair and 5239 Other Financial Investment Activities Maintenance 5241 Insurance Carriers 8121 Personal Care Services 5242 Agencies, Brokerages, and Other 8122 Death Care Services Insurance Related Activities 8131 Religious Organizations 5251 Insurance and Employee Benefit Funds 8132 Grantmaking and Giving Services 5259 Other Investment Pools and Funds 8133 Social Advocacy Organizations 5312 Offices of Real Estate Agents and Brokers. 8134 Civic and Social Organizations 5331 Lessors of Nonfinancial Intangible Assets (except 8139 Business, Professional, Labor, Political, and Copyrighted Works) Similar Organizations (4) Table 1 70 437-001-0700 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDING WORKPLACE INJURIES AND ILLNESSES (5) Recording Criteria and Forms. (a) Each employer required to keep records of fatalities, injuries, and illnesses must record each fatality, injury and illness that: (A) Is work-related; and (B) Is a new case; and (C) Meets one or more of the general recording criteria of OAR 437-001-0700(8) or the application to specific cases of OAR 437-001-0700(9) through (12). Table 2 - Related rules This table indicates which sections of the rule address each topic. Determination of work-relatedness. (i) Determination of a new case. (ii) (iii) General recording criteria. Additional criteria. (Needlestick and sharps injury cases, (iv) tuberculosis cases, hearing loss cases, medical removal cases, and musculoskeletal disorder cases) See 437-001-0700(6) See 437-001-0700(7) See 437-001-0700(8) See 437-001-0700(9) through (12). The decision tree for recording work-related injuries and illnesses below shows the steps involved in making this determination. NO Did the employee experience an injury or illness? YES NO Is the injury or illness work-related? YES Is the injury or illness a new case? Update the previously recorded injury or illness entry if necessary. NO YES NO Does the injury or illness meet the general recording criteria or the application to specific cases? Record the injury or illness Do not record the injury or illness 437-001-0700 YES 71 (5)(a) – (5)(a)(C) RECORDING WORKPLACE INJURIES AND ILLNESSES Oregon Administrative Rules Oregon Occupational Safety and Health Division (6) Work-Related. You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. You presume work-relatedness for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in Table 3 specifically applies. (a) Oregon OSHA defines the work environment as the establishment and other locations where one or more employees work or are present as a condition of their employment. (b) If it is not obvious where the precipitating event occurred you must evaluate the employee’s work duties and environment to decide whether events or exposures in the work environment either caused or contributed to the condition or significantly aggravated a pre-existing condition. (c) A pre-existing injury or illness is significantly aggravated when an event or exposure in the work environment results in (A) through (D) below. Oregon OSHA considers an injury or illness to be a pre-existing if it resulted solely from a non-work-related event or exposure that occurred outside the work environment. (A) Death, provided that the pre-existing injury or illness would likely not have resulted in death but for the occupational event or exposure. (B) Loss of consciousness, provided that the pre-existing injury or illness would likely not have resulted in loss of consciousness but for the occupational event or exposure. (C) One or more days away from work, or days of restricted work, or days of job transfer that otherwise would not have occurred but for the occupational event or exposure. (D) Medical treatment in a case where no medical treatment was needed for the injury or illness before the workplace event or exposure, or a change in medical treatment was necessitated by the workplace event or exposure. (d) An injury or illness occurring in the work environment that falls under one of the following exceptions found in Table 3 is not work-related, and is not recordable. (6) – (6)(d) 72 437-001-0700 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDING WORKPLACE INJURIES AND ILLNESSES Table 3 - Work environment exceptions Do not record injuries and illnesses if . . . At the time of the injury or illness, the employee was present in the work environment as a member of the general public rather than as an employee. The injury or illness involves signs or symptoms that surface at work but result solely from a nonworkrelated event or exposure that occurs outside the work environment. The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball, or baseball. The injury or illness is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the employer’s premises or brought in). For example, if the employee is injured by choking on a sandwich while in the employer’s establishment, the case is not workrelated. Note: If the employee becomes ill by ingesting food contaminated by workplace contaminants (such as lead), or gets food poisoning from food supplied by the employer, the case is work-related. The injury or illness is solely the result of an employee doing personal tasks (unrelated to their employment) at the establishment outside of the employee’s assigned working hours. The injury or illness is solely the result of personal grooming, self-medication for a nonwork-related condition, or is intentionally self-inflicted. The injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work. The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are work-related if the employee is infected at work). The illness is a mental illness. Mental illness is not work-related unless the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a work-related mental illness. (e) Travel. Injuries or illnesses occurring during travel are work-related if the employee was engaged in work activities in the interest of the employer and it is not one of the exceptions in Table 4. Table 4 - Travel status exemptions Do not record injuries or illnesses that occur when the employee is on travel status if they meet one of the exceptions listed below. If the employee . . . You may use the following to determine if an injury or illness is workrelated. checked into a hotel or When a traveling employee checks into a hotel, motel, or other temporary motel for one or more residence, they establish a “home away from home.” You must evaluate the days. employee’s activities after they check into the hotel, motel, or other temporary residence for their work-relatedness in the same manner as you evaluate the activities of a nontraveling employee. When the employee checks into the temporary residence, they have left the work environment. When the employee begins work each day, they re-enter the work environment. If the employee has established a “home away from home” and is reporting to a fixed worksite each day, you also do not consider injuries or illnesses work-related if they occur while the employee is commuting between the temporary residence and the job location. took a detour for Injuries or illnesses are not work-related if they occur while the employee is on a personal reasons. personal detour from a reasonably direct route of travel (e.g., took a side trip for personal reasons). 437-001-0700 73 (6)(d) Table 3 – (6)(e) Table 4 RECORDING WORKPLACE INJURIES AND ILLNESSES Oregon Administrative Rules Oregon Occupational Safety and Health Division (f) Work at home. Injuries and illnesses that occur while an employee works at home, including work in a home office, is work-related if the injury or illness relates directly to the work rather than to the general home environment or setting. (g) Former employees. If you are notified that a former employee has had a work related injury or illness when they were your employee, record the date of the incident on the appropriate OSHA 300 log for the date of the injury. If the date is not known, use the last day of employment. (7) New Cases. An injury or illness is a “new case” if: (a) The employee has no previous recorded injury or illness of the same type that affects the same part of the body, or (b) The employee previously had a recorded injury or illness of the same type that affected the same part of the body but recovered completely (all signs and symptoms disappeared) from the previous injury or illness and an event or exposure in the work environment caused the signs or symptoms to reappear. (A) For occupational illnesses where the signs or symptoms may recur or continue in the absence of a workplace exposure, record the case only once when it is diagnosed. Examples include occupational cancer, asbestosis, byssinosis and silicosis. (B) You are not required to seek the advice of a physician or other licensed health care professional. If you do seek such advice, you must follow their recommendation about whether the case is a new case or a recurrence. (8) General Recording Criteria. A work-related injury or illness is recordable if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. You must record a case if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness. NOTE: Oregon OSHA believes that most significant injuries and illnesses will result in one of the events listed below. However, there are some significant injuries, such as a punctured eardrum or a fractured toe or rib, for which neither medical treatment nor work restrictions may be recommended. In addition, there are some significant progressive diseases, such as byssinosis, silicosis, and some types of cancer, for which medical treatment or work restrictions may not be recommended at the time of diagnosis but are likely to be recommended as the disease progresses. Cancer, chronic irreversible diseases, fractured or cracked bones, and punctured eardrums are generally considered significant injuries and illnesses, and must be recorded at the initial diagnosis even if medical treatment or work restrictions are not recommended, or are postponed, in a particular case. (6)(f) – (8) Note 74 437-001-0700 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDING WORKPLACE INJURIES AND ILLNESSES Table 5 - General recording criteria Record a work-related injury or illness if it results in one or more of the following: Death, See 437-001-0700(8)(a) (i) Days away from work, See 437-001-0700(8)(b) (ii) See 437-001-0700(8)(c) (iii) Restricted work or transfer to another job, Medical treatment beyond first aid, See 437-001-0700(8)(d). (iv) Loss of consciousness, See 437-001-0700(8)(e). (v) A significant injury or illness diagnosed by a physician or See 437-001-0700(8)(f). (vi) other licensed health care professional. (a) Death. You must record an injury or illness that results in death by entering a check mark on the OSHA 300 Log in the space for cases resulting in death. Note: You must also report any work-related fatality to Oregon OSHA within 8 hours. See OAR 437-001-0704. (b) Days Away from Work. When an injury or illness involves one or more days away from work, you must record the injury or illness on the OSHA 300 Log with a check mark in the space for cases involving days away and an entry of the number of calendar days away from work in the number of days column. If the employee is out for an extended period of time, you must enter an estimate of the days that the employee will be away, and update the day count when the actual number of days is known. (A) Begin counting days away on the day after the injury occurred or the illness began. (B) End the count of days away from work on the date the physician or other licensed health care professional recommends that the employee return to work. This applies regardless of whether the employee returns earlier or later than recommended. If there is no recommendation from the physician or licensed health care professional, enter the actual number of days the employee is off work. (C) You must count the number of calendar days the employee was unable to work as a result of the injury or illness, regardless of whether or not the employee was scheduled to work on those day(s). Include weekend days, holidays, vacation days or other days off in the total number of days recorded if the employee would not have been able to work on those days because of a work-related injury or illness. (D) You may stop tracking of the number of calendar days away from work once the total reaches 180 days away from work and/or days of job transfer or restriction. Entering 180 in the total days away column is adequate. (E) If the employee leaves your company for a reason unrelated to the injury or illness, such as retirement, a plant closing, or to take another job, you may stop counting days away from work or days of restriction/job transfer. If the employee leaves your company because of the injury or illness, you must estimate the total number of days away or days of restriction/job transfer and enter the day count on the 300 Log. 437-001-0700 75 (8) Table 5 – (8)(b)(E) RECORDING WORKPLACE INJURIES AND ILLNESSES Oregon Administrative Rules Oregon Occupational Safety and Health Division (F) You must enter the number of calendar days away for the injury or illness on the OSHA 300 Log that you prepare for the year in which the incident occurred. If the time off extends into a new year, estimate the number of days for that year and add that amount to the days from the year of occurrence. Do not split the days between years and enter amounts on the logs for two different years. Use this number to calculate the total for the annual summary, and then update the initial log entry later when the day count is known or reaches the 180-day cap. (c) Restricted Work or Job Transfer. When an injury or illness involves restricted work or job transfer but does not involve death or days away from work, you must record the injury or illness on the OSHA 300 Log by placing a check mark in the space for job transfer or restriction and an entry of the number of restricted or transferred days in the restricted workdays column. Restricted work occurs when, as the result of a work-related injury or illness: (A) You keep the employee from performing one or more of the routine functions of their job, or from working the full day that they would otherwise work; or (B) A physician or other licensed health care professional recommends that the employee not perform one or more of the routine functions of their job, or not work the full workday that they would otherwise work. NOTE: For recordkeeping purposes, an employee’s routine functions are those work activities the employee regularly performs at least once per week. (C) A recommended work restriction is recordable only if it affects one or more of the employee’s routine job functions. To determine whether this is the case, you must evaluate the restriction in light of the routine functions of the injured or ill employee’s job. (D) A partial day of work is recorded as a day of job transfer or restriction for recordkeeping purposes, except for the day on which the injury occurred or the illness began. (E) Record job transfer and restricted work cases in the same box on the OSHA 300 Log. (F) Count days of job transfer or restriction in the same way you count days away from work. The only difference is that, if you permanently assign the injured or ill employee to a job modified or permanently changed to eliminate the routine functions the employee was restricted from performing, you may stop the day count when the modification or change is permanent. You must count at least 1-day of restricted work or job transfer for such cases. (d) Medical Treatment. If a work-related injury or illness results in medical treatment beyond first aid, you must record it on the OSHA 300 Log. If the employee received medical treatment but remained at work without transfer or restriction and the injury or illness did not involve death, one or more days away from work, one or more days of restricted work, or one or more days of job transfer, you enter a check mark in the box for other recordable cases. (8)(b)(F) – (8)(d) 76 437-001-0700 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDING WORKPLACE INJURIES AND ILLNESSES NOTE: You must record the case even if the injured or ill employee does not follow the physician or other licensed health care professional’s recommendation. (A) “Medical treatment” is the management and care of a patient to combat disease or disorder. For this rule, medical treatment does not include: (i) Visits to a physician or other licensed health care professional solely for observation or counseling; (ii) The conduct of diagnostic procedures, such as x-rays and blood tests, including the administration of prescription medications solely for diagnostic purposes (e.g., eye drops to dilate pupils); or (iii) “First aid” as in (B) below. (B) First aid is any of the conditions listed in Table 6. This is a complete list of all first aid treatments for this standard. These treatments are considered first aid regardless of the professional status of the person providing the treatment. Table 6 - First aid treatment Using a nonprescription medication at Drilling of a fingernail or toenail to relieve (H) nonprescription strength (for medications available pressure, or draining fluid from a blister; in both prescription and nonprescription form, a recommendation by a physician or other licensed health care professional to use a nonprescription medication at prescription strength is medical treatment for recordkeeping purposes); Administering tetanus immunizations (other Using eye patches; (B) (I) immunizations, such as Hepatitis B vaccine or rabies vaccine, is medical treatment); Cleaning, flushing or soaking wounds on the Removing foreign bodies from the eye (C) (J) surface of the skin; using only irrigation or a cotton swab; Using wound coverings such as bandages, BandRemoving splinters or foreign material (D) (K) Aids™, gauze pads, etc.; or using butterfly from areas other than the eye by bandages or Steri-Strips™ (other wound closing irrigation, tweezers, cotton swabs or other devices such as sutures, staples, etc. are medical simple means; treatment); Using hot or cold therapy; Using finger guards; (E) (L) Using any nonrigid means of support, such as (F) (M) Using massages (physical therapy or elastic bandages, wraps, nonrigid back belts, etc. chiropractic treatment are medical (devices with rigid stays or other systems designed treatment for recordkeeping purposes); or to immobilize parts of the body are medical treatment for recordkeeping purposes); Using temporary immobilization devices while Drinking fluids for relief of heat stress. (G) (N) transporting an accident victim (e.g., splints, slings, neck collars, back boards, etc.). This is a complete list of all first aid treatments for this standard. These treatments are considered first aid regardless of the professional status of the person providing the treatment. (A) (e) Loss of Consciousness. You must record a work-related injury or illness if the worker becomes unconscious, regardless of the length of time they remain unconscious. 437-001-0700 77 (8)(d) Note - (8)(e) RECORDING WORKPLACE INJURIES AND ILLNESSES Oregon Administrative Rules Oregon Occupational Safety and Health Division (f) Other Injuries and Illnesses. Work-related cases involving cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum must always be recorded under the general criteria at the time of occurrence. (9) Needlestick and Sharps Injury Recording Criteria. (a) When an injury is diagnosed later as an infectious bloodborne disease, you must update the classification on the 300 log to reflect the new status or classification. (b) You must record all work-related needlestick injuries and cuts from sharp objects contaminated with another person’s blood or other potentially infectious material (as defined by OAR 437-002-1910.1030). You must enter the case on the OSHA 300 Log as an injury. To protect the employee’s privacy, do not enter the employee’s name on the OSHA 300 Log (see the requirements for privacy cases in OAR 437-001-0700(14). NOTE: If you have an exposure incident that is not a needlestick, you must still record it if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or diagnosis of a significant injury or illness, such as HIV, hepatitis B, or hepatitis C. (10) Medical Removal Recording Criteria. If another Oregon OSHA standard requires the medical removal of an employee, you must record the case on the OSHA 300 Log. (a) You must enter each medical removal case on the OSHA 300 Log as either a case involving days away from work or a case involving restricted work activity, depending on how you decide to comply with the medical removal requirement. If the medical removal is the result of a chemical exposure, you must enter the case on the OSHA 300 Log by checking the “poisoning” column. (b) If the case involves voluntary medical removal before reaching the medical removal levels required by an Oregon OSHA standard, do not record the case on the OSHA 300 Log. (11) Occupational Hearing Loss Recording Criteria. (a) Hearing loss must be recorded on the OSHA 300 Log by checking the hearing loss column when: (A) An annual audiogram reveals a Standard Threshold Shift (STS) in either or both ears; and (B) The hearing level in the same ear is 25 dB above audiometric zero. Note: For the ease of the reader the definitions for STS and audiometric zero are provided here. Standard Threshold Shift (STS) – A change in hearing threshold relative to the baseline audiogram of an average of 10 dB or more in either ear. Audiometric Zero – The lowest sound pressure level that the average, young adult with normal hearing can hear. (8)(f) – (11)(a)(B) Note 78 437-001-0700 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDING WORKPLACE INJURIES AND ILLNESSES (b) In determining whether an STS has occurred, you may correct for the age of the employee. Use the appropriate table in Appendix A to determine the age adjustment. If the STS is 10 dB or more after the age correction, it still meets the criteria for recordability. (c) If you retest the employee’s hearing within 30 days of the first test, and the retest does not confirm the recordable STS, you are not required to record the hearing loss case on the OSHA 300 Log. If the retest confirms the recordable STS, you must record the hearing loss case within 7 calendar days of the retest. If subsequent audiometric testing performed under the testing requirements of the noise standard (OAR 437-0021910.95) indicates that an STS is not persistent, you may erase, delete, or line-out the recorded entry. (d) If a physician or other licensed health care professional determines that the hearing loss is not work-related or has not been significantly aggravated by occupational noise exposure, the case is not work-related. Do not record it on the OSHA 300 Log. (12) Tuberculosis Reporting Criteria. If any of your employees has an occupational exposure to anyone with a known case of active tuberculosis (TB), and that employee subsequently develops a tuberculosis infection, as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional, you must record the case on the OSHA 300 Log by checking the “respiratory condition” column. (a) Do not record a pre-employment positive skin test because the exposure was not in your workplace. (b) Line out or erase a recorded case if you prove that: (A) The worker lives in a household with a person diagnosed with active TB; (B) The Public Health Department identifies the worker as a contact of an individual with a case of active TB unrelated to the workplace; or (C) A medical investigation shows that the employee’s infection was caused by exposure to TB away from work, or proves that the case was not related to the workplace TB exposure. (13) Removed. (14) Forms. (a) You must use OSHA 300, 300A, and DCBS Form 801 or equivalent forms, for recordable injuries and illnesses. The OSHA 300 form is the Log of Work-Related Injuries and Illnesses, the 300A is the Summary of Work-Related Injuries and Illnesses, and the DCBS Form 801 or equivalent is the Worker’s and Employer’s Report of Occupational Injury or Disease. The OSHA 300 and 300A Summary forms must be kept on a calendar year basis. 437-001-0700 79 (11)(b) - (14)(a) RECORDING WORKPLACE INJURIES AND ILLNESSES Oregon Administrative Rules Oregon Occupational Safety and Health Division (A) Even if you are exempt from recordkeeping, you must have at each establishment, a copy of DCBS Form 801 or equivalent for each occupational injury or illness that may result in a compensable claim. (B) You must enter information about your business at the top of the OSHA 300 Log, enter a one or two line description for each recordable injury or illness, and summarize this information on the OSHA 300A Summary form at the end of the year. (C) You must complete a DCBS Form 801 or equivalent form, for each recordable injury or illness entered on the OSHA 300 Log. (D) You must enter each recordable injury or illness on the OSHA 300 Log and DCBS Form 801 or equivalent within 7 calendar days of receiving information that a recordable injury or illness has occurred. (E) An equivalent form is one that has the same information, is as readable and understandable, and is completed using the same instructions as the OSHA form it replaces. Many employers use an insurance form instead of the DCBS Form 801, or supplement an insurance form by adding any additional information required by OSHA. (F) You may use a computer to keep your records if it can produce equivalent forms when needed. (G) Privacy Concern Cases. If you have a “privacy concern case,” do not enter the employee’s name on the OSHA 300 Log. Instead, enter “privacy case” in the space normally used for the employee’s name. This will protect the privacy of the injured or ill employee when another employee, a former employee, or an authorized employee representative has access to the OSHA 300 Log. You must keep a separate, confidential list of the case numbers and employee names for your privacy concern cases so you can update the cases and provide the information to the government if asked to do so. (H) The following injuries or illnesses are privacy concern cases: (i) An injury or illness to an intimate body part or the reproductive system; (ii) An injury or illness resulting from a sexual assault; (iii) Mental illnesses; (iv) HIV infection, hepatitis, or tuberculosis; (v) Needlestick injuries and cuts from sharp objects contaminated with another person’s blood or other potentially infectious material; and (vi) Other illnesses, if the employee voluntarily requests that his or her name not be entered on the log. (14)(a)(A) – (14)(a)(H) 80 437-001-0700 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDING WORKPLACE INJURIES AND ILLNESSES NOTE: This is a complete list of all injuries and illnesses that are privacy concern cases. (I) If you reasonably believe that information describing the privacy concern case may be personally identifiable even though the employee’s name is omitted, use discretion in describing the injury or illness on both the OSHA 300 and DCBS 801 Forms. You must enter enough information to identify the cause of the incident and the general severity of the injury or illness, but you do not need to include details of an intimate or private nature. For example, describe a sexual assault case as “injury from assault,” or an injury to a reproductive organ could be described as “lower abdominal injury.” (J) If you voluntarily disclose the forms to persons other than government representatives, employees, former employees or authorized representatives, you must remove or hide the employees’ names and other personally identifying information, except for the following cases: (i) To an auditor or consultant hired by the employer to evaluate the safety and health program; (ii) To the extent necessary for processing a claim for workers’ compensation or other insurance benefits; or (iii) To a public health authority or law enforcement agency for uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required under Department of Health and Human Services Standards for Privacy of Individually Identifiable Health Information, 45 CFR.164.512. (b) In addition, health care employers as defined in ORS 654.412 must record assaults against employees on the Health Care Assault Log. See OAR 437-001-0706. (15) Multiple Business Establishments. You must keep a separate OSHA 300 Log for each establishment that you expect to operate for 1-year or longer. (a) You may keep one OSHA 300 Log that covers all of your short-term establishments. You may also include the short-term establishments’ recordable injuries and illnesses on an OSHA 300 Log that covers short-term establishments for individual company divisions or geographic regions. (b) You may keep the records for an establishment at your headquarters or other central location if you can: (A) Transmit information about the injuries and illnesses from the establishment to the central location within 7 calendar days of receiving information that a recordable injury or illness has occurred; and (B) Produce and send the records from the central location to the establishment within the time frames required by OAR 437-001-0700(20) and OAR 437-0010700(21) when you are required to provide records to a government representative, employees, former employees or employee representatives. 437-001-0700 81 (14)(a)(H) Note - (15)(b)(B) RECORDING WORKPLACE INJURIES AND ILLNESSES Oregon Administrative Rules Oregon Occupational Safety and Health Division (c) You must link each employee with one of your establishments, for recordkeeping purposes. You must record the injury and illness on the OSHA 300 Log of the injured or ill employee’s establishment, or on an OSHA 300 Log that covers that employee’s shortterm establishment. (d) If the injury or illness occurs at one of your establishments, you must record the injury or illness on the OSHA 300 Log of the establishment where the injury or illness occurred. If the employee is injured or becomes ill and is not at one of your establishments, you must record the case on the OSHA 300 Log at the establishment where the employee normally works. (16) Covered Employees. You must record on the OSHA 300 Log the recordable injuries and illnesses of all employees on your payroll, whether they are labor, executive, hourly, salary, part-time, seasonal, or migrant workers. You also must record the recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis. If your business is organized as a sole proprietorship or partnership, the owner or partners are not considered employees for recordkeeping purposes. (a) Record the injuries and illnesses to workers from temporary help agencies or employee leasing services only if you supervise these employees on a day-to-day basis. (b) If a contractor’s employee is under the day-to-day supervision of the contractor, the contractor is responsible for recording the injury or illness. If you supervise the contractor employee’s work on a day-to-day basis, you must record the injury or illness. (c) You and the temporary help service, employee leasing service, personnel supply service, or contractor should coordinate your efforts to make sure that each injury and illness is recorded only once: either on your OSHA 300 Log (if you provide day-to-day supervision) or on the other employer’s OSHA 300 Log (if that company provides day-today supervision). (17) Annual Summary and Posting Requirements. At the end of each calendar year, you must: (a) Review the OSHA 300 Log to verify that the entries are complete and accurate, and correct any deficiencies identified. (b) Use the OSHA 300A Summary form to create an annual summary of injuries and illnesses recorded on the OSHA 300 Log: (A) Total the columns on the OSHA 300 Log (if you had no recordable cases, enter zeros for each column total); and (B) Enter the calendar year covered, the company's name, establishment name, establishment address, annual average number of employees covered by the OSHA 300 Log, and the total hours worked by all employees covered by the OSHA 300 Log. (15)(c) – (17)(b)(B) 82 437-001-0700 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDING WORKPLACE INJURIES AND ILLNESSES (C) If you are using an equivalent form other than the OSHA 300A Summary form, the summary you use must also include the employee access and employer penalty statements found on the OSHA 300A Summary form. (c) Sign or have a representative sign the 300A Summary to certify that the OSHA 300 Log is correct to the best of the signer’s knowledge. If the summary is signed by a person other than a company executive, a company executive must also review the OSHA 300 Log in order to be generally familiar with its contents. A company executive is: (A) An owner of the company when the company is a sole proprietorship or partnership; (B) An officer of the corporation; (C) The highest ranking company official working at the establishment; or (D) The immediate supervisor of the highest ranking company official working at the establishment. (d) Post a copy of the 300A Summary form in each establishment in a conspicuous place or places where notices to employees are customarily posted. Ensure that the posted annual summary is not altered, defaced or covered by other material. (e) Post the 300A Summary no later than February 1 of the year following the year covered by the records and keep it posted until April 30. (f) When you maintain records for all of your establishments at your headquarters or other central location, each 300A Summary form must be specific to each separate establishment. (18) Paperwork Retention and Updating. (a) You must save the OSHA 300 Log, the privacy case list (if any), the 300A Summary form, and the DCBS Form 801 or equivalent forms for 5 years following the end of the calendar year that they cover. (b) During the storage period, you must update your stored OSHA 300 Logs to include newly discovered recordable injuries or illnesses and to show any changes that have occurred in the classification of previously recorded injuries and illnesses. If the description or outcome of a case changes, you must remove or line out the original entry and enter the new information. NOTE: For more information on retention of medical and exposure records, see OAR 437-0021910.1020. 437-001-0700 83 (17)(b)(C) - (18)(b) Note RECORDING WORKPLACE INJURIES AND ILLNESSES Oregon Administrative Rules Oregon Occupational Safety and Health Division (19) Change of Business Ownership. If your business changes ownership, you must record and report work-related injuries and illnesses only for the time you owned the establishment. You must transfer the records to the new owner. The new owner must save all records of the establishment kept by the prior owner, but need not update or correct the records of the prior owner. (20) Employee Involvement. You must involve your employees and their representatives in the recordkeeping system. (a) Inform each employee of how they are to report an injury or illness to you. (b) Provide limited access to your injury and illness records for your employees and their representatives. (c) Your employees, former employees, their personal representatives, and their authorized collective bargaining representatives have the right to access the OSHA injury and illness records, in accordance with (d) through (h) below. Note: A personal representative is anybody designated in writing by the employee or former employee, as well as the legal representative of a deceased or legally incapacitated employee. (d) When an employee, former employee, personal representative, or authorized employee representative asks for copies of your current or stored OSHA 300 Log(s) for an establishment the employee or former employee has worked in, you must give the requester a copy of the relevant OSHA 300 Log(s) by the end of the next business day. (e) You must leave the names on the 300 Log. However, to protect the privacy of injured and ill employees, do not record the employee’s name on the OSHA 300 Log for certain “privacy concern cases.” (f) When an employee, former employee, or personal representative asks for a copy of the DCBS Form 801 or equivalent describing an injury or illness to that employee or former employee, you must give the requester a copy of the DCBS Form 801 or equivalent containing that information by the end of the next business day. (g) When an authorized employee representative asks for copies of the DCBS Form 801 or equivalent for an establishment where the agent represents employees under a collective bargaining agreement, you must give copies of those forms to the authorized employee representative within 7 calendar days. You are only required to give the authorized employee representative information from the releasable part of the DCBS Form 801 or equivalent section titled “Tell us about the case” or a similar section. You must remove all other information from the copy of the DCBS Form 801 or equivalent form that you give to the authorized employee representative. (h) You may not charge for these copies the first time. However, if one of the designated persons asks for additional copies, you may assess a reasonable charge for retrieving and copying the records. (19) – (20)(h) 84 437-001-0700 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDING WORKPLACE INJURIES AND ILLNESSES (21) Providing Records to Government Representatives. When an authorized government representative asks for the records you keep in compliance with this standard, you must provide copies of the records within 4 business hours. Authorized government representatives are: (a) A representative of the Oregon Department of Consumer and Business Services. (b) A representative of the Secretary of Labor conducting an inspection or investigation under the Act. (c) A representative of the Secretary of Health and Human Services (including the National Institute for Occupational Safety and Health - NIOSH) conducting an investigation under Section 20(b) of the Act. (22) Requests from the Bureau of Labor Statistics or DCBS. If you receive a Survey of Occupational Injuries and Illnesses Form from the Bureau of Labor Statistics (BLS), or a BLS designee, or a request for data from the Oregon Department of Consumer and Business Services, you must promptly complete the form and return it following the instructions on the survey form. (23) Prohibition against discrimination. Oregon Revised Statute 654.062(5) prohibits discrimination against an employee for reporting a work-related fatality, injury or illness. It also protects the employee who files a safety and health complaint, asks for access to this rule, records, or otherwise exercises any rights afforded by law or rule. Stat. Auth.: ORS 654-025(2) and 656.726(4). Stats. Implemented: ORS 654.001 to 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 7-1979, f. 8-20-79, ef. 9-1-79. WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 11-2001, f. 9/14/01, ef. 1/1/02. OR-OSHA Admin. Order 2-2002, f. 3/12/02, ef. 3/12/02. OR-OSHA Admin. Order 7-2002, f. 11/15/02, ef. 11/15/02. OR-OSHA Admin. Order 6-2003, f. 11/26/03, ef. 11/26/03. OR-OSHA Admin. Order 7-2006, f. 9/6/06, ef. 9/6/06. OR-OSHA Admin. Order 11-2007, f. 12/21/07, ef. 1/1/08. OR-OSHA Admin. Order 8-2008, f. 7/14/08, ef. 7/14/08. OR-OSHA Admin. Order 2-2015, f. 3/18/15, ef. 1/1/16. 437-001-0700 85 (21) - (23) Oregon Administrative Rules Oregon Occupational Safety and Health Division 86 Oregon Administrative Rules Oregon Occupational Safety and Health Division AGE RELATED HEARING LOSS Appendix A (Nonmandatory) to 437-001-0700, Age Related Hearing Loss. You cannot use age correction for determining whether an employee has reached the 25 dB threshold above audiometric zero. You cannot age-correct an audiogram for determining a Standard Threshold Shift (STS) for purposes of OAR 437-002-1910.95, “Occupational Noise Exposure.” When determining whether you must record an STS on the OSHA 300 Log, you can allow for the contribution of aging by adjusting the current audiogram. If you choose to adjust the audiogram, follow the procedure described below. This procedure and the age correction tables were developed by the National Institute for Occupational Safety and Health in the criteria document entitled “Criteria for a Recommended Standard . . . Occupational Exposure to Noise,” ((HSM)-11001). For each ear; (i) Determine from Tables F-1 (for males) or F-2 (for females) the age correction values for the employee by: (A) Finding the age at which the current audiogram was taken and recording the corresponding values of age corrections at 2000 Hz, 3000 Hz, and 4000 Hz; (B) Finding the age at which the baseline audiogram was taken and recording the corresponding values of age corrections at 2000 Hz, 3000 Hz, and 4000 Hz. (ii) Subtract the values in the baseline from the values in the current audiogram. (iii) The calculated difference represents the portion of the change in hearing that may be due to aging. (iv) An STS is a loss of 10 dB as an average of the 2000 Hz, 3000 Hz, and 4000 Hz between the baseline audiogram and the current audiogram. Once you have performed the age correction, add up the results of the age-corrected audiogram and divide by three. If the result is 10 or larger, then it is still an STS. EXAMPLE: Employee is a 32-year-old male. The audiometric history for his right ear is shown in decibels below. Employee’s age *27 28 29 30 31 *32 437-001-0700 Audiometric test frequency (Hz) 2000 3000 4000 0 0 5 0 0 10 0 5 15 5 10 20 10 20 15 10 10 25 87 Appendix A AGE RELATED HEARING LOSS Oregon Administrative Rules Oregon Occupational Safety and Health Division The audiogram at age 27 is considered the baseline since it was the initial audiogram. Asterisks have been used to identify the baseline and current audiogram. A threshold shift of 10 dB exists at both the 2000 Hz and 3000 Hz, and a 20 dB shift exists at 4000 Hz between the audiograms taken at ages 27 and 32. (The threshold shift is computed by subtracting the hearing threshold at age 27, which was 0, 0, 5, from the hearing threshold at age 32, which is 10, 10, and 25). A retest audiogram has confirmed this shift. The contribution of aging to this change in hearing may be estimated in the following manner: Go to Table F-1 and find the age correction values at age 27 and age 32. Age 32 Age 27 Difference Frequency (Hz) 3000 7 6 1 2000 5 4 1 4000 10 7 3 The difference represents the amount of hearing loss that may be attributed to aging in the time period between the baseline audiogram and the current audiogram. In this example, the difference at 2000 Hz is 1 dB, the difference at 3000 Hz is 1dB, and the difference at 4000 Hz is 3 dB. These values are subtracted from the respective hearing levels of the current audiogram. Once you have done the age correction, compare the age-corrected audiogram to the baseline to determine the severity of the shift. There is no need to age-correct the baseline for this purpose because the calculation above already took that into consideration. 2000 9 0 9 Age-corrected Current Audiogram Baseline Audiogram Shift Frequency (Hz) 3000 9 0 9 4000 22 5 17 An STS is present when the difference between the current audiogram and the baseline audiogram is 10 dB averaged from the 2000 Hz, 3000 Hz and 4000 Hz readings. In this instance, the average of 9 dB (from the 2000 Hz reading), 9 dB (from the 3000 Hz reading), and 17 dB (from the 4000 Hz reading) is 11.7 dB. This is an STS because the shift is more than 10 dB, even after the age correction. Appendix A 88 437-001-0700 Oregon Administrative Rules Oregon Occupational Safety and Health Division Years 20 or younger 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 AGE RELATED HEARING LOSS TABLE F-1 - AGE CORRECTION VALUES IN DECIBELS FOR MALES Audiometric Test Audiometric Test Frequency (Hz) Frequency (Hz) Years 2000 3000 4000 2000 3000 4000 3 4 5 41 6 10 14 3 4 5 42 7 11 16 3 4 5 43 7 12 16 3 4 6 44 7 12 17 3 5 6 45 7 13 18 3 5 7 46 8 13 19 4 5 7 47 8 14 19 4 6 7 48 8 14 20 4 6 8 49 9 15 21 4 6 8 50 9 16 22 4 6 9 51 9 16 23 4 7 9 52 10 17 24 5 7 10 53 10 18 25 5 7 10 54 10 18 26 5 8 11 55 11 19 27 5 8 11 56 11 20 28 5 9 12 57 11 21 29 6 9 12 58 12 22 31 6 9 13 59 12 22 32 6 10 14 60 or older 13 23 33 6 10 14 TABLE F-2 - AGE CORRECTION VALUES IN DECIBELS FOR FEMALES Audiometric Test Audiometric Test Frequency (Hz) Frequency (Hz) Years Years 2000 3000 4000 2000 3000 4000 20 or younger 4 3 3 41 8 8 8 21 4 4 3 42 8 9 9 22 4 4 4 43 8 9 9 23 5 4 4 44 8 9 9 24 5 4 4 45 8 10 10 25 5 4 4 46 9 10 10 26 5 5 4 47 9 10 11 27 5 5 5 48 9 11 11 28 5 5 5 49 9 11 11 29 5 5 5 50 10 11 12 30 6 5 5 51 10 12 12 31 6 6 5 52 10 12 13 32 6 6 6 53 10 13 13 33 6 6 6 54 11 13 14 34 6 6 6 55 11 14 14 35 6 7 7 56 11 14 15 36 7 7 7 57 11 15 15 37 7 7 7 58 12 15 16 38 7 7 7 59 12 16 16 39 7 8 8 60 or older 12 16 17 40 7 8 8 Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 7-2002, f. 11/15/02, ef. 11/15/02. 437-001-0700 89 Appendix A Oregon Administrative Rules Oregon Occupational Safety and Health Division 90 Oregon Administrative Rules Oregon Occupational Safety and Health Division HEARING LOSS RECORDABILITY FLOWCHART Appendix B (Nonmandatory) to 437-001-0700, Hearing Loss Recordability Flowchart Is there a shif t of 10 dB or more? STOP No Yes Yes Has a physician determined that the shif t is NOT w ork related? No Yes Af ter the age correction, is there still a loss of 10 dB or more? Is the shif t age related? No Is the recorded hearing level 25 dB or more? Yes Yes Record as hearing loss on the OSHA 300 No No Do not record this on the OSHA 300 Follow the f ollow -up procedures requirements listed in OAR 437-002-1910.95(g)(8) All numbers referenced below are taken as an average of the 2K, 3K, and 4K Hx. levels of the audiogram. * 1910.95 assumes that any shift is workplace-induced unless a physician determines otherwise. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 7-2002, f. 11/15/02, ef. 11/15/02. 437-001-0700 91 Appendix B Oregon Administrative Rules Oregon Occupational Safety and Health Division 92 Oregon Administrative Rules Oregon Occupational Safety and Health Division REPORTING FATALITIES & INJURIES TO OREGON OSHA 437-001-0704 Reporting Fatalities and Injuries to Oregon OSHA. (1) Purpose. This rule requires employers to report certain work-related fatalities, injuries and illnesses. Note: Reporting a work-related injury, illness, or fatality does not assign fault to anybody, does not prove the violation of an OSHA rule, and does not establish the employee’s eligibility for workers’ compensation or other benefits. (2) Scope. This standard covers all employers covered by the Oregon Safe Employment Act. (3) You must report fatalities and catastrophes to Oregon OSHA only in person or by telephone within 8 hours of occurrence or employer knowledge (reported to you or any of your agents) of a fatality or catastrophe: (a) Fatalities. You must report all work-related fatalities. You must report all fatalities caused by a heart attack at work. Report a fatality only if death occurs within 30 days of the incident. Note: Work-related fatalities include those caused by a motor vehicle accident that happens during the employee’s work shift. (b) Catastrophe. A catastrophe is an incident in which two or more employees are fatally injured, or three or more employees are admitted to a hospital or an equivalent medical facility (for example, a clinic) as a result of the same incident. (4) You must report in-patient hospitalizations, loss of an eye, and either amputations or avulsions that result in bone loss, to Oregon OSHA within 24 hours after occurrence of the work related incident or employer knowledge (reported to you or any of your agents) of the event. When an amputation, avulsion or loss of an eye involves in-patient hospitalization, you need only to make a single report. (a) In-Patient Hospitalization. In-patient hospitalization is the formal admission to the in-patient service of a hospital or clinic for care or medical treatment (includes first-aid). Hospitalization for observation only is not reportable, nor is emergency room treatment. In-patient hospitalization for any reason after emergency room treatment is reportable. You must report all incidents that result in in-patient hospitalization, including heart attacks and motor vehicle accidents. Report in-patient hospitalizations only if they occur within 24 hours of the incident that caused the hospitalization. 437-001-0704 93 (1) – (4)(a) REPORTING FATALITIES & INJURIES TO OREGON OSHA Oregon Administrative Rules Oregon Occupational Safety and Health Division (b) Loss of an eye. Report the loss of an eye only if it occurs within 24 hours of the incident that caused the loss. (c) Amputations and avulsions. An amputation is the traumatic loss of a limb or other external body part, including a fingertip. Amputations include loss of a body part due to a traumatic incident, a gunshot wound, and medical amputations due to irreparable traumatic injuries. An avulsion is the tearing away or forcible separation of any body part by trauma. Report an amputation or avulsion only if it includes bone and/or cartilage loss. Report an amputation or avulsion only if it occurs within 24 hours of the incident that caused the amputation or avulsion. Note: There are additional reporting requirements for injuries relating to Mechanical Power Presses, 1910.217(g). Oregon OSHA Office locations and telephone numbers are: Salem Central Office 350 Winter Street NE, Room 430 Salem OR 97301-3882 (503) 378-3272 Toll Free: (800) 922-2689 Eugene 1140 Willagillespie, Suite 42 Eugene OR 97401-2101 (541) 686-7562 Medford 1840 Barnett Road, Suite D Medford OR 97504-8250 (541) 776-6030 Portland Area Durham Plaza 16760 SW Upper Boones Ferry Road, Suite 200 Tigard OR 97224 (503) 229-5910 Bend Red Oaks Square 1230 NE Third Street, Suite A-115 Bend OR 97701-4374 (541) 388-6066 Pendleton 721 SE Third Street, Suite 306 Pendleton OR 97801-3056 (541) 276-9175 Salem 1340 Tandem Avenue NE, Suite 160 Salem OR 97309-0417 (503) 378-3274 Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 2-2015, f. 3/18/15, ef. 1/1/16. (4)(b) - (4)(c) Note 94 437-001-0704 Oregon Administrative Rules Oregon Occupational Safety and Health Division RECORDKEEPING FOR HEALTH CARE ASSAULTS 437-001-0706 Recordkeeping for Health Care Assaults. NOTE: For further information, instructions, and resources, visit Oregon OSHA’s healthcare workplace violence assault log web page at: www.orosha.org/subjects/health_care_assault_log.html . (1) Purpose. This rule implements the amendments to the Oregon State Employment Act, ORS 654.412 through 654.423, providing specific provisions for the recordkeeping and reporting requirements of health care assaults, and additional recordkeeping requirements as authorized under ORS 654.025(2) and ORS 656.726(4)(a). NOTE: For the ease of the reader, ORS 654.412 through 654.423 is reprinted as Appendix B to OAR 437-001-0706. (2) Scope and Definitions. This rule applies to health care employers and home health care services provided by health care employers. Health care employers only include hospitals and ambulatory surgical centers, which are defined in ORS 442.015: "Hospital" means a facility with an organized medical staff, with permanent facilities that include inpatient beds and with medical services, including physician services and continuous nursing services under the supervision of registered nurses, to provide diagnosis and medical or surgical treatment primarily for but not limited to acutely ill patients and accident victims, to provide treatment for the mentally ill or to provide treatment in special inpatient care facilities. "Ambulatory surgical center" means a facility that performs outpatient surgery not routinely or customarily performed in a physician's or dentist's office, and is able to meet health facility licensure requirements. (3) Health care assault recordkeeping. In addition to existing general recordkeeping requirements in OAR 437-001-0700, Recordkeeping and Reporting, health care employers must use the Health Care Assault Log, or equivalent, to record assaults. See ORS 654.412 through 654.423 for details required to be recorded. Appendix A of 437-001-0706 provides instructions for completing the form. NOTE: If the incident results in an overnight hospitalization, a catastrophe, or fatality, it must be reported timely to Oregon OSHA. See OAR 437-001-0704 Reporting Fatalities and Injuries to Oregon OSHA. Record recordable injuries, illnesses, fatalities on the OSHA 300 Log. See OAR 437-001-0700 Recording Workplace Injuries and Illnesses. (4) Other recordkeeping information. The following sections of OAR 437-001-0700 apply to health care assault recordkeeping and reporting: 437-001-0706 95 Note – (4)(a) RECORDKEEPING FOR HEALTH CARE ASSAULTS Oregon Administrative Rules Oregon Occupational Safety and Health Division Section (6) Work-relatedness Section (14)(b) Forms Section (15) Multiple Business Establishments Section (16) Covered Employees Section (19) Change of Business Ownership Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.412 through 654.423. Hist: OR-OSHA Admin. Order 11-2007, f. 12/21/07, ef. 1/1/08. OR-OSHA Admin. Order 8-2008, f. 7/14/08, ef. 7/14/08. OR-OSHA Admin. Order 2-2011, f. 9/29/11, ef. 10/1/11. (4)(b) - (4)(c) Note 96 437-001-0704 Oregon Administrative Rules Oregon Occupational Safety and Health Division INSTRUCTIONS FOR RECORDING HEALTH CARE ASSAULTS Appendix A to OAR 437-001-0706 Instructions for Recording Health Care Assaults (A) (B) (C) (D) (E) (F) (G) (H) (I) Case number This is a unique sequential number that identifies this case. Location (include address) If all incidents occur at the same physical site, then this information can be entered once. If, as the case with distributed reporting, there are multiple sites (such as home care sites) reporting on a common Log, then enter identifying information for the side where this incident occurred, including street address. H/S/M (H - hospital, S - surgical center, M - home setting) Enter the code indicating the type of facility. Date of incident Time of incident Specific location where incident occurred Enter a code that most closely matches the type of location where the incident occurred, from the following list: AD - admitting/triage CO - corridor/hallway/stairwell/elevator BA – bathroom EN - entrance/exit/restricted entry LO - lobby/waiting room NU - nurse's station/pod area PA - patient room TR - treatment room CS - common space (cafeteria, recreation room, etc.) O - other (enter text to describe this location) Floor number where incident occurred Name of employee assaulted Enter the name of the employee assaulted. Job title of this employee Enter the job title of the employee assaulted; please select a code from the following list: N - RN (registered nurse), LPN (licensed practical nurse) HA - CNA (certified nursing assistant), nurse's aide, health aide, orderly PH - physician, physician's assistant, nurse practitioner PT – pharmacist TE - technician, technologist R – receptionist ES - housekeeping, maintenance S – security SW - social worker HH - home health aide TT - physical therapist, occupational therapist, speech therapist O - other (enter job description) 437-001-0706 97 Appendix A INSTRUCTIONS FOR RECORDING HEALTH CARE ASSAULTS (J) (K) (L) Oregon Administrative Rules Oregon Occupational Safety and Health Division Department or unit assignment Enter the home department or ward assignment for the employee: IN – intake ER – emergency LA – laboratory OB - obstetrics/gynecology ON – oncology PD – pediatrics PH – pharmacy PC - primary care/medical clinic BH - behavioral health/psych units in acute care RA - radiology/diagnostic imaging RE - rehabilitation medicine SU - surgery/operating room RC – recovery IC - intensive care/critical care MS - medical/surgical unit NE – neurology CA - cardiac care FL - float staff (additional designation, employee is working in an alternate location) O – other Note: If an employee is float staff (sometimes called "float pool" or "float/per diem") record the additional code FL, as well as the department/unit assignment. Status of assailant (P - patient/general, BH - behavioral health patient, V - visitor, E employee, O - other) Enter the code corresponding to the status of the assailant (person assaulting the employee). BH would apply to patients diagnosed as behavioral health, whether currently in a behavioral health unit or acute care unit. Assailment action Enter the code corresponding to the action taken by the assailant (multiple selections ok). B – biting GR - grabbing, pinching, scratching HK - hitting, kicking, beating PS - pushing, shoving TR - throwing objects ST – stabbing SH – shooting SR - sexual assault, rape O - other (enter text to describe) Appendix A 98 437-001-0706 Oregon Administrative Rules Oregon Occupational Safety and Health Division (M) (N) (O) (P) INSTRUCTIONS FOR RECORDING HEALTH CARE ASSAULTS Possible cause Enter the code that most closely corresponds to the reason for the attack. BH - behavioral health AN - anesthesia recovery M - medication issue Include drugs and alcohol WD - withdrawal symptoms SN - systemic/neurological disorders Underlying physical conditions that can result in erratic behavior, including diabetes, head trauma, epilepsy, dementia, and other. EM - emotional issue Angry, distraught, other strong emotions H - history of violent behavior O - other (enter text to describe) Note: even if more than one may apply, please determine the cause that most directly contributed to this incident. Other causes can be noted in the Comments field. Result of Assaultive Behavior Place a checkmark in the column that reflects the injury resulting from the assault - enter one check reflecting the most serious injury for this incident. (1) Mild soreness, surface abrasions, scratches, or small bruises (2) Major soreness, cuts, or large bruises (3) Severe laceration, bone fracture, or head injury (4) Loss of limb or death Weapon Enter a code reflecting the type of weapon used, if any. G – gun K – knife B - bar, rod, club, stick DW - door, window, floor, wall F – furniture MI - medical instrument or equipment FO - food, utensils, meal tray AB - assailant's body (assaulted by assailant's hands, feet, other body parts) BF - bodily fluids O - other (enter type of weapon used) Number of employees present (in addition to victim) Enter the number of other employees that witnessed the incident (enter 0 if no one else was present). 437-001-0706 99 Appendix A INSTRUCTIONS FOR RECORDING HEALTH CARE ASSAULTS (Q) (R) Oregon Administrative Rules Oregon Occupational Safety and Health Division Response Enter the code that most closely reflects the response taken by the employee and others when the incident occurred (multiple selections ok). SR - seclusion or physical restraint PRN - medication administered as necessary SM - self-defense moves D - de-escalate by talking down B - call for backup Calls may be verbal or electronic (phone, pager, or other). LE - reported to law enforcement E - exit the scene O - other (describe the response if none of the codes reflect the action taken) Note immediate response, even if subsequent action (e.g., procedural or policy changes by the facility) led to additional interventions. Comments Enter any additional information that will help describe this incident or the actions taken. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 11-2007, f. 12/21/07, ef. 1/1/08. OR-OSHA Admin. Order 2-2011, f. 9/29/11, ef. 10/1/11. Appendix A 100 437-001-0706 Oregon Administrative Rules Oregon Occupational Safety and Health Division SAFETY OF HEALTH CARE EMPLOYEES Appendix B to OAR 437-001-0706 SAFETY OF HEALTH CARE EMPLOYEES 654.412 Definitions for ORS 654.412 to 654.423. As used in ORS 654.412 to 654.423: (1) “Assault” means intentionally, knowingly or recklessly causing physical injury. (2) “Health care employer” means: (a) An ambulatory surgical center as defined in ORS 442.015. (b) A hospital as defined in ORS 442.015. (3) “Home health care services” means items or services furnished to a patient by an employee of a health care employer in a place of temporary or permanent residence used as the patient’s home. [2007 c.397 §2] 654.414 Duties of health care employer; security and safety assessment; assault prevention program; requirements. (1) A health care employer shall: (a) Conduct periodic security and safety assessments to identify existing or potential hazards for assaults committed against employees; (b) Develop and implement an assault prevention and protection program for employees based on assessments conducted under paragraph (a) of this subsection; and (c) Provide assault prevention and protection training on a regular and ongoing basis for employees. (2) An assessment conducted under subsection (1)(a) of this section shall include, but need not be limited to: (a) A measure of the frequency of assaults committed against employees that occur on the premises of a health care employer or in the home of a patient receiving home health care services during the preceding five years or for the years that records are available if fewer than five years of records are available; and (b) An identification of the causes and consequences of assaults against employees. 437-001-0706 101 Appendix B SAFETY OF HEALTH CARE EMPLOYEES Oregon Administrative Rules Oregon Occupational Safety and Health Division (3) An assault prevention and protection program developed and implemented by a health care employer under subsection (1)(b) of this section shall be based on an assessment conducted under subsection (1)(a) of this section and shall address security considerations related to the following: (a) Physical attributes of the health care setting; (b) Staffing plans, including security staffing; (c) Personnel policies; (d) First aid and emergency procedures; (e) Procedures for reporting assaults; and (f) Education and training for employees. (4) (a) Assault prevention and protection training required under subsection (1)(c) of this section shall address the following topics: (A) General safety and personal safety procedures; (B) Escalation cycles for assaultive behaviors; (C) Factors that predict assaultive behaviors; (D) Techniques for obtaining medical history from a patient with assaultive behavior; (E) Verbal and physical techniques to de-escalate and minimize assaultive behaviors; (F) Strategies for avoiding physical harm and minimizing use of restraints; (G) Restraint techniques consistent with regulatory requirements; (H) Self-defense, including: (i) The amount of physical force that is reasonably necessary to protect the employee or a third person from assault; and (ii) The use of least restrictive procedures necessary under the circumstances, in accordance with an approved behavior management plan, and any other methods of response approved by the health care employer; (I) Procedures for documenting and reporting incidents involving assaultive behaviors; Appendix B 102 437-001-0706 Oregon Administrative Rules Oregon Occupational Safety and Health Division SAFETY OF HEALTH CARE EMPLOYEES (J) Programs for post-incident counseling and follow-up; (K) Resources available to employees for coping with assaults; and (L) The health care employer’s workplace assault prevention and protection program. (b) A health care employer shall provide assault prevention and protection training to a new employee within 90 days of the employee’s initial hiring date. (c) A health care employer may use classes, video recordings, brochures, verbal or written training or other training that the employer determines to be appropriate, based on an employee’s job duties, under the assault prevention and protection program developed by the employer. [2007 c.397 §3] 654.415 [Repealed by 1973 c.833 §48] 654.416 Required records of assaults against employees; contents; rules. (1) A health care employer shall maintain a record of assaults committed against employees that occur on the premises of the health care employer or in the home of a patient receiving home health care services. The record shall include, but need not be limited to, the following: (a) The name and address of the premises on which each assault occurred; (b) The date, time and specific location where the assault occurred; (c) The name, job title and department or ward assignment of the employee who was assaulted; (d) A description of the person who committed the assault as a patient, visitor, employee or other category; (e) A description of the assaultive behavior as: (A) An assault with mild soreness, surface abrasions, scratches or small bruises; (B) An assault with major soreness, cuts or large bruises; (C) An assault with severe lacerations, a bone fracture or a head injury; or (D) An assault with loss of limb or death; 437-001-0706 103 Appendix B SAFETY OF HEALTH CARE EMPLOYEES Oregon Administrative Rules Oregon Occupational Safety and Health Division (f) An identification of the physical injury; (g) A description of any weapon used; (h) The number of employees in the immediate area of the assault when it occurred; and (i) A description of actions taken by the employees and the health care employer in response to the assault. (2) A health care employer shall maintain the record of assaults described in subsection (1) of this section for no fewer than five years following a reported assault. (3) The Director of the Department of Consumer and Business Services shall adopt by rule a common recording form for the purposes of this section. [2007 c.397 §4] 654.418 Protection of employee of health care employer after assault by patient. If a health care employer directs an employee who has been assaulted by a patient on the premises of the health care employer to provide further treatment to the patient, the employee may request that a second employee accompany the employee when treating the patient. If the health care employer declines the employee’s request, the health care employer may not require the employee to treat the patient. [2007 c.397 §5] 654.420 [Repealed by 1973 c.833 §48] 654.421 Refusal to treat certain patients by home health care employee. (1) An employee who provides home health care services may refuse to treat a patient unless accompanied by a second employee if, based on the patient’s past behavior or physical or mental condition, the employee believes that the patient may assault the employee. (2) An employee who provides home health care services may refuse to treat a patient unless the employee is equipped with a communication device that allows the employee to transmit one-way or two-way messages indicating that the employee is being assaulted. [2007 c.397 §6] Appendix B 104 437-001-0706 Oregon Administrative Rules Oregon Occupational Safety and Health Division SAFETY OF HEALTH CARE EMPLOYEES 654.423 Use of physical force by home health care employee in selfdefense against assault. (1) A health care employer may not impose sanctions against an employee who used physical force in self-defense against an assault if the health care employer finds that the employee: (a) Was acting in self-defense in response to the use or imminent use of physical force; (b) Used an amount of physical force that was reasonably necessary to protect the employee or a third person from assault; and (c) Used the least restrictive procedures necessary under the circumstances, in accordance with an approved behavior management plan, or other methods of response approved by the health care employer. (2) As used in this section, “self-defense” means the use of physical force upon another person in self-defense or to defend a third person. [2007 c.397 §7] Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.412 through 654.423. Hist: OR-OSHA Admin. Order 2-2011, f. 9/29/11, ef. 10/1/11. 437-001-0706 105 Appendix B Oregon Administrative Rules Oregon Occupational Safety and Health Division 106 Oregon Administrative Rules Oregon Occupational Safety and Health Division FALSIFICATION OR FAILURE TO KEEP & POST RECORDS OR MAKE REPORTS / RECORDKEEPING VARIANCES & EXCEPTIONS 437-001-0740 Falsification or Failure to Keep and Post Records or Make Reports. Oregon OSHA will cite employers who fail to keep the records, post the summaries or make the reports required by OAR 437-001-0700 (except 437-001-0704 which is addressed in 437-001-0170) or 437-001-0706. Citations will be ‘other than serious’ and carry a penalty of at least $100 but not more than $1000 for each violation. NOTE: ORS 654.991(3) provides that anybody who knowingly makes a false statement, representation or certification in any application, record, report, plan or other document filed or required by ORS 654.001 to 654.295, will, on conviction, be fined not more than $10,000 or be imprisoned for not more than 6 months, or both. Also, ORS 654.086(1)(e) provides for civil penalties for falsification of a document. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78. WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82. APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 6-1994, f. 9/30/94, ef. 9/30/94. OR-OSHA Admin. Order 11-2001, f. 9/14/01, ef. 1/1/02. OR-OSHA Admin. Order 7-2002, f. 11/15/02, ef. 11/15/02. OR-OSHA Admin. Order 11-2007, f. 12/21/07, ef. 1/1/08. 437-001-0742 Recordkeeping Variances and Exceptions. In order to achieve a uniform national system for the recordkeeping and reporting of occupational injuries and illnesses, the State of Oregon and the U.S. Department of Labor have agreed that as applied to employers, defined in subsections 3(5) of the Occupational Safety and Health Act of 1970 (Public Law 91-596, 81 STAT 1950), the state will not grant any variances or exceptions to the recordkeeping and reporting regulations of this part without prior approval of the U.S. Bureau of Labor Statistics. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB Admin. Order 19-1974, f. 6-5-74, ef. 7-1-74. APD Admin. Order 7-1988, f. 6-17-88, ef. 7-1-74. OR-OSHA Admin. Order 11-2001, f. 9/14/01, ef. 1/1/02. 437-001-0740 107 437-001-0742 Oregon Administrative Rules Oregon Occupational Safety and Health Division 108 Oregon Administrative Rules Oregon Occupational Safety and Health Division RULES FOR ALL WORKPLACES 437-001-0760 Rules for all Workplaces. (1) Employers’ Responsibilities. (a) The employer must see that workers are properly instructed and supervised in the safe operation of any machinery, tools, equipment, process, or practice that they are authorized to use or apply. This rule does not require a supervisor on every part of an operation nor prohibit workers from working alone. (b) The employer must take all reasonable means to require employees: (A) To work and act in a safe and healthful manner; (B) To conduct their work in compliance with all applicable safety and health rules; (C) To use all means and methods, including but not limited to, ladders, scaffolds, guardrails, machine guards, safety belts and lifelines, that are necessary to safely accomplish all work where employees are exposed to a hazard; and (D) Not to remove, displace, damage, destroy or carry off any safety device, guard, notice or warning provided for use in any employment or place of employment while such use is required by applicable safety and health rules. (c) Every employer is responsible for providing the health hazard control measures necessary to protect the employees’ health from harmful or hazardous conditions and for maintaining such control measures in good working order and in use. (d) Every employer must inform the employees regarding the known health hazards to which they are exposed, the measures which have been taken for the prevention and control of such hazards, and the proper methods for utilizing such control measures. (e) Every agent of the employer is responsible for: (A) The safe performance of the work under the agent’s supervision or control; (B) The safe conduct of all employees under the agent’s supervision or control; (C) The safety of all employees working under the agent’s supervision or control. (2) Employees’ Responsibilities. (a) Employees must conduct their work in compliance with the safety rules contained in this code. (b) All injuries must be reported immediately to the person in charge or other responsible representative of the employer. 437-001-0760 109 (1)(a) - (2)(b) RULES FOR ALL WORKPLACES Oregon Administrative Rules Oregon Occupational Safety and Health Division (c) It is the duty of all workers to make full use of safeguards provided for their protection. It is the worker’s responsibility to abide by and perform the following requirements: (A) A worker must not operate a machine unless guard or method of guarding is in good condition, working order, in place, and operative. (B) A worker must stop the machine or moving parts and properly tagout or lockout the starting control before oiling, adjusting, or repairing, except when such machine is provided with means of oiling or adjusting that will prevent possibility of hazardous contact with moving parts. (C) A worker must not remove guards or render methods of guarding inoperative except for the purpose of adjustment, oiling, repair, or the setting up a new job. (D) Workers must report to their supervisor any guard or method of guarding that is not properly adjusted or not accomplishing its intended function. (E) Workers must not use their hands or any portion of their bodies to reach between moving parts or to remove jams, hangups, etc. (Use hook, stick, tong, jig or other accessory.) (F) Workers must not work under objects being supported that could accidentally fall (such as loads supported by jacks, the raised body of a dump truck, etc.) until such objects are properly blocked or shored. (G) Workers must not use defective tools or equipment. No tool or piece of equipment should be used for any purpose for which it is not suited, and none should be abused by straining beyond its safe working load. (d) Workers must not remove, deface, or destroy any warning, danger sign, or barricade, or interfere with any other form of accident prevention device or practice provided which they are using, or which is being used by any other worker. (e) Workers must not work underneath or over others exposed to a hazard thereby without first notifying them and seeing that proper safeguards or precautions have been taken. (f) Workers must not work in unprotected, exposed, hazardous areas under floor openings. (g) Long or unwieldy articles must not be carried or moved unless adequate means of guarding or guiding are provided to prevent injury. (h) Hazardous conditions or practices observed at any time must be reported as soon as practicable to the person in charge or some other responsible representative of the employer. (i) Workers observed working in a manner which might cause immediate injury to either themselves or other workers must be warned of the danger. (2)(c) - (2)(i) 110 437-001-0760 Oregon Administrative Rules Oregon Occupational Safety and Health Division RULES FOR ALL WORKPLACES (j) Before leaving a job, workers must correct, or arrange to give warning of, any condition which might result in injury to others unfamiliar with existing conditions. (3) Investigations of Injuries. (a) Each employer must investigate or cause to be investigated every lost time injury that workers suffer in connection with their employment, to determine the means that should be taken to prevent recurrence. The employer must promptly install any safeguard or take any corrective measure indicated or found advisable. (b) At the request of authorized Department representatives, it is the duty of employers, their superintendents, supervisors and employees to furnish all pertinent evidence and names of known witnesses to an accident and to give general assistance in producing complete information which might be used in preventing a recurrence of such accident. At the request of the Department, persons having direct authority must preserve and mark for identification, materials, tools or equipment necessary to the proper investigation of an accident. (4) Intoxicating Liquor and Drugs. The use of intoxicating liquor on the job is strictly prohibited. Anyone whose ability to work safely is impaired by alcohol, drugs, or medication must not be allowed on the job while in that condition. (5) Horseplay. There must be no horseplay, scuffling, practical jokes, or any other activity of a similar nature. (6) Extraordinary Hazards. When conditions arise that cause unusual or extraordinary hazards to workers, additional means and precautions shall be taken to protect workers or to control hazardous exposure. If the operation cannot be made reasonably safe, regular work must be discontinued while such abnormal conditions exist, or until adequate safety of workers is ensured. (7) Inspections. (a) All places of employment must be inspected by a qualified person or persons as often as the type of operation or the character of the equipment requires. Defective equipment or unsafe conditions found by these inspections must be replaced or repaired or remedied promptly. (b) Wherever required in this safety code, a written and dated report, signed by the person or persons making the inspection, must be kept. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: WCB No. 1-1967, f. 1/12/67, ef. 1/15/67. WCB No. 3-1975, f. 10/6/75, ef. 11/1/75. WCB Admin. Order, Safety 11-1976, f. 5/5/76, ef. 5/5/76. WCB Admin. Order, Safety 15-1976, f. 7/6/76, ef. 8/1/76. WCD Admin. Order, Safety 10-1982, f. 7/30/82, ef. 7/30/82. OR-OSHA Admin. Order 6-1994, f. 9/30/94, ef. 9/30/94. OR-OSHA Admin. Order 2-2009, f. 1/27/09, ef. 2/3/09. OR-OSHA Admin. Order 2-2012, f. 5/11/12, ef. 7/1/12. 437-001-0760 111 (2)(j) - (7)(b) SAFETY COMMITTEES AND SAFETY MEETINGS Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0765 Safety Committees and Safety Meetings. This rule requires employers to establish and administer a safety committee, or hold safety meetings, to communicate and evaluate safety and health issues. Purpose: The purpose of safety committees and safety meetings is to bring workers and management together in a non-adversarial, cooperative effort to promote safety and health. Safety committees and safety meetings will assist you in making continuous improvement to your safety and health programs. Scope: This rule applies to public or private employers in Oregon subject to Oregon OSHA jurisdiction, except as listed below. You do not have to comply with this rule if you are: The sole owner and only employee of a corporation; A member of a board or commission and do not participate in the day-to-day activities of the company. You are not considered an employee for purposes of this rule. Engaged in agricultural activities covered by Division 4, Subdivision C. Engaged in forest activities covered by Division 7, Subdivisions B and C. Division 2, Subdivision L OAR 437-002-0182(7) requires employers engaged in fire service activities to establish a separate fire service safety committee or opt for safety meetings if they meet the criteria in the following table. You can choose a committee or meetings. (1) You must establish and administer an effective safety committee or hold effective safety meetings as defined by these rules: IF You have 10 or fewer employees more than half of the year (including seasonal and temporary) More than half of your employees report to construction sites More than half of your employees are mobile or move frequently between sites Most employees do not regularly work outside an office environment You have more than 10 employees at a location, and none of the above applies You have satellite or auxiliary offices with 10 or fewer employees at each location (1) YOU CAN HAVE A SAFETY COMMITTEE Yes YOU CAN HAVE SAFETY MEETINGS Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes 112 437-001-0765 Oregon Administrative Rules Oregon Occupational Safety and Health Division SAFETY COMMITTEES AND SAFETY MEETINGS Safety Committees. (2) If you have 20 or fewer employees you must have at least 2 members. If you have more than 20 employees you must have at least 4 members. (3) You must have an equal number of employer-selected members and employee-elected or volunteer members. If both parties agree, the committee may have more employeeelected or volunteer members. NOTE: Management can select a supervisor to represent them. Employees can elect a supervisor to represent them. (4) Your safety committee members must: Have a majority agree on a chairperson. Serve a minimum of one year, when possible. Be compensated at their regular rate of pay. Have training in the principles of accident and incident investigations for use in evaluating those events. Have training in hazard identification. Be provided with meeting minutes. Represent major activities of your business. (5) Your safety committee must meet on company time as follows: Quarterly in situations where employees do mostly office work. Monthly for all other situations (except the months when quarterly worksite inspections are performed). (6) You must keep written records of each safety committee meeting for three years that include: Names of attendees. Meeting date. All safety and health issues discussed, including tools, equipment, work environment, and work practice hazards. Recommendations for corrective action and a reasonable date by which management agrees to respond. Person responsible for follow up on any recommended corrective actions. All reports, evaluations and recommendations made by the committee. 437-001-0765 113 (2) - (6) SAFETY COMMITTEES AND SAFETY MEETINGS Oregon Administrative Rules Oregon Occupational Safety and Health Division (7) Your safety committee must establish procedures for conducting workplace safety and health inspections. Persons trained in hazard identification must conduct inspections as follows: WHERE Primary fixed locations Office environments Auxiliary and satellite locations Mobile work locations, infrequently visited sites, and sites that do not lend themselves to quarterly inspections WHO Employer and employee representatives Employer and employee representatives Employer and employee representatives or a designated person Employer and employee representatives or a designated person WHEN Quarterly Quarterly Quarterly As often as the safety committee determines is necessary (8) In addition to the above requirements, your safety committee must: Work with management to establish, amend or adopt accident investigation procedures that will identify and correct hazards. Have a system that allows employees an opportunity to report hazards and safety and health related suggestions. Establish procedures for reviewing inspection reports and for making recommendations to management. Evaluate all accident and incident investigations and make recommendations for ways to prevent similar events from occurring. Make safety committee meeting minutes available for all employees to review. Evaluate management’s accountability system for safety and health, and recommend improvements. Examples include use of incentives, discipline, and evaluating success in controlling safety and health hazards. (9) If you have multiple locations, you may choose to have a centralized safety committee. A centralized safety committee must represent the safety and health concerns of all locations and meet the requirements for safety committees. If you rely on a centralized committee, you must also have a written safety and health policy that: Represents management commitment to the committee. Requires and describes effective employee involvement. Describes how the company will hold employees and managers accountable for safety and health. Explains specific methods for identifying and correcting safety and health hazards at each location. Includes an annual written comprehensive review of the committees’ activities to determine effectiveness. NOTE: Two or more employers at a single location may combine resources to meet the intent of these rules. (7) - (9) Note 114 437-001-0765 Oregon Administrative Rules Oregon Occupational Safety and Health Division SAFETY COMMITTEES AND SAFETY MEETINGS Safety Meetings. (10) Safety meetings must: Include all available employees. Include at least one employer representative authorized to ensure correction of safety and health issues. Be held on company time and attendees paid at their regular rate of pay. (11) Hold safety meetings with the following frequency if: NATURE OF THE BUSINESS You employ construction workers FREQUENCY OF MEETINGS At least monthly and before the start of each job that lasts more than one week. At least quarterly At least monthly Your employees do mostly office work All other employers (12) Safety meetings must include discussions of: Safety and health issues Accident investigations, causes, and the suggested corrective measures. (13) Employers in construction, utility work and manufacturing must document, make available to all employees, and keep for three years a written record of each meeting that includes the following: Hazards related to tools, equipment, work environment and unsafe work practices identified and discussed during the meeting. The date of the meeting. The names of those attending the meeting. All other employers do not need to keep these records if all employees attend the safety meeting. (14) If you are a subcontractor on a multi-employer worksite, to meet the intent of (11) through (13), your employees may attend the prime contractor’s safety meetings. You may keep the minutes from these meetings as a part of your records to meet the intent of (13). If you choose this option, you must still meet to discuss accidents involving your employees. (15) Innovation. After you apply, OR-OSHA may grant approval for safety committees or safety meetings that differ from the rule requirements yet meet the intent of these rules. (16) Effective Dates. The effective date for compliance with this rule is January 1, 2009. For employers with 10 or fewer employees, other than those in construction, the effective date is September 19, 2009. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.176. Hist: WCD Admin. Order, Safety 10-1982, f. 7/30/82, ef. 11/1/82. OR-OSHA Admin. Order 12-1990, f. 6/18/90, ef. 6/18/90 (temp). OR-OSHA Admin. Order 28-1990, f. 12/18/90, ef. 3/1/91 (perm). OR-OSHA Admin. Order 6-1994, f. 9/30/94, ef. 9/30/94. OR-OSHA Admin. Order 9-1995, f. 11/29/95, ef. 11/29/95. 437-001-0765 115 OR-OSHA Admin. Order 8-2001, f. 7/13/01, ef. 7/13/01. OR-OSHA Admin. Order 6-2003, f. 11/26/03, ef. 11/26/03. OR-OSHA Admin. Order 7-2006, f. 9/6/06, ef. 9/6/06 OR-OSHA Admin. Order 9-2008, f. 9/19/08, ef. 1/1/09. (10) - (16) APPLICATION PROCEDURES / APPLICATION REVIEW Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-0800 Application Procedures. (1) The Division may solicit applications for Occupational Safety and Health Grants to develop innovative, proactive occupational safety and health training, educational programs or materials. (2) Any labor consortium, employer consortium, educational institution that is affiliated with a labor organization or employer group, or other nonprofit entity, may apply for an Occupational Safety and Health Grant as provided in ORS 654.189 and 654.191, and in accordance with OAR 437-001-0800 through 437-001-0810. (3) An applicant for a grant shall submit the grant application during the period of time specified in the application procedure. An application shall be in writing on the application forms and procedures provided by the Division and shall contain at a minimum: (a) The name, address and telephone number of each applicant; (b) The name, address and telephone number of the project director; (c) The amount of the request; (d) An impact statement including the type and number of employees or employers targeted; the problem to be addressed, and the impact the project will have on occupational safety and health in Oregon; (e) A description of the manner in which the grant will be used, including: (A) Anticipated financial expenditures; (B) A developmental plan that states goals and how they will be accomplished; (C) Proposed completion date; (D) Proposed in-kind services; (E) Targeted audience; and (F) Intended measurement of results; and, (f) Any other information included in the application forms and procedures. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 3-1989, f. 12/1/89, ef. 12/1/89. 437-001-0805 Application Review. (1) The Division shall review all applications and request any additional information needed to assure applications are relevant and complete. 437-001-0800(1) 116 437-001-0805(1) Oregon Administrative Rules Oregon Occupational Safety and Health Division APPLICATION REVIEW / GRANT AWARDS (2) After an application is determined to be complete and in compliance with the intended goals of the program by the Division, it shall be forwarded to the Safe Employment Education and Training Advisory Committee (SEETAC) for review and possible recommendation for grant approval. (3) In reviewing grant applications for possible recommendations for approval to the Director, the committee shall consider at least the following elements: (a) The amount of available funds in the Occupational Safety and Health Grant account; (b) The impact statement details; (c) The innovativeness of the grant request; (d) The feasibility of the developmental plan; (e) The amount of in-kind services; (f) The stability of other funding sources; and (g) The administrative costs and/or responsibilities imposed on the Division in connection with the grant project. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 3-1989, f. 12/1/89, ef. 12/1/89. 437-001-0810 Grant Awards. (1) The Division shall notify applicants, in writing, of the approval or disapproval of the grant request. (2) The applicant shall execute documents required by the Division for evidence of the type and amount of grant given, performance criteria and reporting requirements, and any other terms and conditions agreed to in connection with the awarding of a grant. (3) Grant recipients shall make available to the Division all records and materials necessary to monitor the grant award. (4) If the terms and conditions under which the grant was approved are not met, the Division may, upon written notice, take one or more of the following actions: (a) Immediately revoke approval of the use of Occupational Safety and Health Grant funds; or (b) Require repayment of all or a portion of any funds advanced; or (c) Any other appropriate legal action necessary. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: OR-OSHA Admin. Order 3-1989, f. 12/1/89, ef. 12/1/89. 437-001-0805(2) 117 437-001-0810(4)(c) AUTHORITY & APPLICABILITY OF RULES / PURPOSE & SCOPE / DEFINITIONS Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-1005 Authority and Applicability of Rules. (1) OAR 437-001-1005 through 437-001-1065 are promulgated under the Director’s authority contained in ORS 654.097. (2) The Director of the Department of Consumer and Business Services delegates to the Administrator of the OR-OSHA Division the authority to enforce these rules. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988. f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. 437-001-1010 Purpose and Scope. (1) Nothing in these rules is intended to impose a duty upon the insurer or to transfer from the employer to the insurer responsibility set forth in ORS 654.001 to 654.991, or to impose liability other than these rules upon the insurer for failure to identify any unsafe conditions or occupational health and safety hazard. (2) The purpose of these rules is to promote workplace health and safety by: (a) Establishing insurer and self-insured employer loss prevention services designed to advise employers on regulations, laws, means and methods for improving health and safety at their places of employment; and (b) Providing for the evaluation of insurers’ and self-insured employers’ loss prevention activities by the OR-OSHA Division to ensure compliance with the law and these rules. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-1015 Definitions. (1) Establishment: A single physical location where business is conducted or where services or industrial operations are performed. Where distinctly separate activities are performed at a single physical location, each activity shall be treated as a separate establishment. (2) Insured employer: An employer insured with a workers’ compensation carrier. (3) Insurer: The State Accident Insurance Fund (SAIF) Corporation or any insurance company authorized or regulated under ORS Chapter 731 to issue workers’ compensation insurance policies in Oregon. 437-001-1005(1) 118 437-001-1015(3) Oregon Administrative Rules Oregon Occupational Safety and Health Division DEFINITIONS / GENERAL REQUIREMENTS (4) Loss prevention effort: An ongoing effort by the self-insured employer to integrate health and safety into the workplace in such a manner that occupational injuries and illnesses are reduced. (5) Loss prevention plan: A plan developed by the employer with the assistance of the insurer with the primary emphasis on reduction of workplace injuries and illnesses. (6) Loss prevention services: Services designed to advise and assist employers in the identification, evaluation, and control of existing and potential causes of accidents and occupational health and safety problems. (7) Loss prevention services program: A program intended to promote occupational health and safety, and to help eliminate and control work hazards to employees. (8) Self-insured employer: An employer certified under ORS 656.430 as meeting the qualifications of a self-insured employer set out by ORS 656.407. (9) Substantial failure to comply: The failure by an insurer or self-insured employer to respond or make available timely on-site services; failure to respond or make available in a timely manner specialized consultative services or: (a) If an insurer fails to identify and advise of in a timely manner reasonably discoverable serious or life-threatening hazards within the scope of the services requested or provided or: (b) If a self-insured employer fails to identify and control in a timely manner reasonably discoverable serious of life-threatening hazards within the scope of the services requested or provided. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. OR-OSHA Admin. Order 2-2009, f. 1/27/09, ef. 2/3/09. 437-001-1020 General Requirements. (1) The insurer or self-insured employer shall, within 60 days after the effective date of these rules, submit to the Administrator the following information: (a) The name of the insurer or self-insured employer; (b) The insurer’s or self-insured employer’s Oregon business address where records are kept; and (c) The name or title, business address, and telephone number of the representative who will act as liaison with the Division in all matters pertaining to loss prevention services. 437-001-1015(4) 119 437-001-1020(1)(c) GENERAL REQUIREMENTS Oregon Administrative Rules Oregon Occupational Safety and Health Division (2) After the first 60 days these rules are in effect, each new insurer must comply with OAR 437-001-1020(1) at the time of application for the authority to issue insurance policies in Oregon. (3) After the first 60 days these rules are in effect, each self-insured employer shall submit the information required in OAR 437-001-1020(1) at the time the employer submits its application to the Compliance Section of the Workers’ Compensation Division for selfinsurance. (4) Each insurer or self-insured employer shall notify the Division, in writing, of any change in the information in OAR 437-001-1020(1)(a) through (c) within 30 days of that change. (5) When requested by the Division, each insurer and self-insured employer shall make available with reasonable promptness copies of loss prevention, loss control and related records. (6) The duty of compliance with OAR 437-001-1005 through 437-001-1065 is that of the insurer or self-insured employer regardless whether the insurer or self-insured employer contracts for assistance for the required services. Stat. Auth.: ORS 654.025(2) and 656.726(4). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 8-1991, f. 4/25/91, ef. 5/1/91. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. OR-OSHA Admin. Order 2-2009, f. 1/27/09, ef. 2/3/09. (2) – (6) 120 437-001-1020 Oregon Administrative Rules Oregon Occupational Safety and Health Division NOTIFICATION OF SERVICES / REQUESTS FOR SERVICES 437-001-1025 Notification of Services. (1) When an insurer writes a workers’ compensation policy for an employer, and annually thereafter, the insurer shall inform the employer at the employer’s Oregon main office of the loss prevention services that are available. The information shall include at least the following: (a) A description of all loss prevention services that the insurer is required to offer, and other loss prevention services the insurer provides; (b) A description of the availability of and process for obtaining loss prevention services; (c) An offer, by the insurer, of an on-site evaluation of the loss prevention service needs of the insured; (d) An explanation of the employer’s responsibility to provide a safe and healthful workplace as required by the Oregon Safe Employment Act (ORS 654.001 to 654.295 and 654.991); and (e) A statement of the employer’s right to make a complaint to the OR-OSHA Division if an insurer fails to respond to a request from one of its insured employers for loss prevention services or otherwise fails to provide services as offered or required. (2) An insurer shall provide the material described in section (1) of this rule and instructions that the employer distribute this material to each of the employer’s fixed places of employment in Oregon. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-1030 Requests for Services. (1) Any request by an insured employer regarding an imminent danger hazard shall be responded to with loss prevention services as soon as possible by the insurer. (2) Any other requests regarding alleged hazards other than imminent danger shall be responded to with loss prevention services as soon as practicable, but not longer than 30 days following the date of the request. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88 OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. 437-001-1025(1) 121 437-001-1030(2) LOSS PREVENTION SERVICES Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-1035 Loss Prevention Services. (1) Each insurer shall make occupational health and safety loss prevention services available to all its insured employers and shall provide certain other services as required by this rule. (2) At a minimum, loss prevention services and personnel providing the services must meet the needs of the particular place of employment, special industry, or process, and shall include at least the following: (a) Evaluation of the employer’s loss prevention needs; (b) Assistance in evaluating records that may be pertinent to the firm’s illness and injury experience; (c) An explanation to the employer of the Oregon Safe Employment Act and rules that apply to the particular place of employment; (d) Provision of partial or complete on-site health and safety surveys, which identify all reasonably discoverable occupational safety and health hazards within the scope of the survey scheduled; (e) Assistance with industrial hygiene and safety evaluations to detect physical and chemical hazards of the workplace, and implementation of engineering or administrative controls; (f) Assistance with evaluating, obtaining, and maintaining personal protective equipment; (g) Evaluation of work practices, workplace design, and assistance with job site modifications; (h) Assistance in evaluating and improving an employer’s safety management practices; (i) Assistance in identifying health and safety training needs and available resources; and (j) An offer to provide follow-up services. (3) Loss prevention services shall include a written report with a plan of action. (4) If, when providing loss prevention services, a condition of imminent danger is observed (see OAR 437-001-0015), the insurer shall advise the employer of the hazard and the need to immediately correct it. (5) All insurers shall maintain records of all loss prevention services provided at the locations designated by the insurer for Division personnel’s review and must be maintained for not less than 3 years following the date the service was provided. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 7-1999, f. 7/15/99, 7/15/99. (1) – (5) 122 437-001-1035 Oregon Administrative Rules Oregon Occupational Safety and Health Division REQUIRED LOSS PREVENTION SERVICES 437-001-1040 Required Loss Prevention Services. (1) An insurer shall offer to assist in developing a loss prevention plan with each of its employers with a claims frequency or severity greater than its average employer in the same industry. The plan shall promote self-sufficiency on the part of the employer to reduce injuries and illnesses, and shall include a means to identify and control all reasonably discoverable occupational health and safety hazards. (2) The assistance shall include the following: (a) Employer notification of the available services. (b) Perform a workplace hazard survey. (c) Review of injury records and documentation of activities designed to lead to the reduction of workplace injuries and illnesses. (d) Assist the employer in developing a written loss prevention plan that is based upon the results of the hazard survey and review of injury records. The plan must at a minimum address the following loss prevention principles: (A) Management commitment to health and safety; (B) An accountability system for employer and employees; (C) Training practices and follow-up; (D) A system for hazard assessment and control; (E) A system for investigating all recordable occupational injuries and illnesses that includes written findings and corrective action; (F) A system for evaluating, obtaining, and maintaining personal protective equipment; (G) Evaluation of workplace design, work practices and assistance with job site modifications; and (H) Employee involvement in the health and safety effort. (e) Tailor the plan to meet the needs of the employer for reduction of injuries and illnesses while promoting self-sufficiency on the part of the employer. (3) The insurer’s obligation to assist shall end if the employer declines the services offered by the carrier. 437-001-1040 123 (1) – (3) REQUIRED LOSS PREVENTION SERVICES Oregon Administrative Rules Oregon Occupational Safety and Health Division (4) The Division may evaluate the insurers’ targeted loss prevention services program randomly, however no more frequently than every 3 years. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 10-1990, f. 5/31/90, ef. 5/31/90 (temp). OR-OSHA Admin. Order 24-1990, f. 10/10/90, ef. 10/10/90 (perm). OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. OR-OSHA Admin. Order 7-1999, f. 7/15/99, ef. 7/15/99. (4) 124 437-001-1040 Oregon Administrative Rules Oregon Occupational Safety and Health Division SELF-INSURED & GROUP SELF-INSURED EMPLOYER LOSS PREVENTION ASSISTANCE / LOSS PREVENTION PROGRAMS 437-001-1050 Self-Insured and Group Self-Insured Employer Loss Prevention Assistance. (1) A self-insured employer and each self-insured group shall make available to each of its workplace or group locations occupational safety and health loss prevention assistance. (2) A self-insured employer or group shall acknowledge all requests for services which do not involve alleged hazards from any of its locations within 30 days by scheduling a date to begin providing services. (3) Any request from locations of the self-insured employer or group regarding imminent danger of an alleged hazard shall be responded to as soon as possible with loss prevention services. (4) All other requests regarding alleged hazards other than imminent danger shall be responded to with loss prevention services as soon as practicable, but not longer than 30 days following the date of the request. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 8-1991, f. 4/25/91, ef. 5/1/91. 437-001-1055 Self-Insured and Group Self-Insured Employer Loss Prevention Programs. Each self-insured employer and each member of a group selfinsured program shall establish and implement a written occupational health and safety loss prevention program for each establishment. As a minimum requirement, the program shall: (1) Provide for a loss prevention effort within the normal functions of the business for prevention or reduction of health and safety injuries and illnesses; and (2) Inform its managers and workplace locations of the availability and the process for requesting loss prevention assistance. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 8-1991, f. 4/25/91, ef. 5/1/91. 437-001-1050(1) 125 437-001-1055(2) SELF-INSURED & GROUP SELF-INSURED EMPLOYER LOSS PREVENTION EFFORT Oregon Administrative Rules Oregon Occupational Safety and Health Division 437-001-1060 Self-Insured and Group Self-Insured Employer Loss Prevention Effort. Each self-insured employer and each member of a group self-insured program shall implement a loss prevention effort for each of its locations, which identifies and controls all reasonably discoverable occupational safety and health hazards and items not in compliance with the federal or the division’s occupational safety and health laws, rules and standards. The self-insured group shall assist each member of the group in developing and implementing the loss prevention effort. This loss prevention effort shall include at least the following: (1) Management commitment to health and safety; (2) An accountability system for employer and employees; (3) Training practices and follow-up; (4) A system for hazard assessment and control; (5) A system for investigating all recordable occupational injuries and illnesses that includes corrective action and written findings; (6) A system for evaluating, obtaining, and maintaining personal protective equipment; (7) On-site routine industrial hygiene and safety evaluations to detect physical and chemical hazards of the workplace, and the implementation of engineering or administrative controls; (8) Evaluation of workplace design, layout and operation, and assistance with job site modifications utilizing an ergonomic approach; (9) Employee involvement in the health and safety effort; (10) An annual evaluation of the employer’s loss prevention activities based on the location’s current needs; and (11) The group shall maintain records which document the assistance provided to each member of the group. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 8-1991, f. 4/25/91, ef. 5/1/91. (1) – (11) 126 437-001-1060 Oregon Administrative Rules Oregon Occupational Safety and Health Division PENALTY PROVISIONS FOR INSURERS 437-001-1065 Penalty Provisions for Insurers. (1) For insurers who fail to comply with the law and the requirements of OAR 437-001-1005 through 437-001-1065, the Administrator: (a) Shall assess a civil penalty in accordance with ORS 654.086; and (b) May send a notice to an insurer, in accordance with ORS 656.447, of the Director’s intent to request the Administrator of the Insurance Division to suspend or revoke the insurer’s certificate of authority. Penalty Provisions for Self-Insured Employers. (2) For self-insured employers who fail to comply with the law and the requirements of OAR 437-001-1005 through 437-001-1065, the Administrator shall assess a civil penalty in accordance with ORS 654.086. Stat. Auth.: ORS 654.025(2) and 656.726(3). Stats. Implemented: ORS 654.001 through 654.295. Hist: APD Admin. Order 21-1988, f. 12/27/88, ef. 12/27/88. OR-OSHA Admin. Order 7-1992, f. 7/31/92, ef. 10/1/92. – END OF DOCUMENT – 437-001-1065 127 (1) – (2) Oregon Administrative Rules Oregon Occupational Safety and Health Division 128
